judicial politics essay

Politics and the Judiciary: A Naïve Step Towards the End of Judicial Policy-Making

• First Online: 01 January 2015

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• Maria Benedita Urbano 6  

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 44))

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This essay will focus on the relation between the judiciary and politics, more precisely, between constitutional control and politics. Accepting that the active engagement of judges in political decision-making constitutes a dangerous path with profound implications at the political, legal, economic and social levels, it also discusses the possibility of neutralizing judicial policy-making. The concept of ‘judicial policy-making’, its relationship with the concept of judicial activism, and the conditions favoring it are analysed in the first part. The second part deals with questions involving the allotment of legislative function to constitutional judges. In the final part, remedies aimed at refraining judicial policy-making are suggested.

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‘Government by the judiciary’ (Boudin) or ‘Government by judges’ (Chief Justice M. Walter Clark). See Boudin ( 1911 ).

The term ‘judicial activism’ was coined by Arthur Schlesinger Jr, in a 1947 article in Fortune magazine.

Various authors highlight the difficulties in defining ‘judicial activism’. See, e.g., Kmiec ( 2004 : 1451), Young ( 2002 : 1143–1144), Sowell ( 1989 : 1), Sunstein ( 2005 : 41–43). In any case, judicial activism might be consider both a normative and political phenomenon. Surely not the mere disagreement with particular judicial outcomes. See Young ( 2002 : 1142).

See Cappelletti ( 1990 : 25, 28).

And then, there are different degrees of judicial activism, from a shy or reluctant activism to an “overactivism” (term used by Vipin Kumar). See Kumar ( 2014 : 23).

See Tate and Vallinder ( 1995 : 4).

The German experience offers a clear example of that phenomenon. See Landfried ( 1995 : 313).

For a discussion of the social rights enforcement by the judiciary, see, generally, Landau ( 2012 ).

See Urbano ( 2010 : 626, 627).

See Urbano ( 2010 : 628, 629).

See Tate ( 1995 : 33).

See Tate ( 1995 : 32).

See Tate ( 1995 : 32, 33).

See Urbano ( 2010 : 625).

Kumar ( 2014 : 23) believes that judicial encroachment on legislative and executive domain will boomerang in the form of political class stepping to reach the bench. Thus, one may argue that the more politicised constitutional or hight courts are, the more likely it is that a political partisan appointment of constitutional judges will occur.

In truth, the term ‘judicial self-restraint’ is as open to a wide variety of interpretations as the term ‘judicial activism’.

See Posner ( 1999 : 332).

As Landfried puts it, “The more political questions are decided by the Constitutional Court, the more political alternatives are reduced”. See Landfried ( 1995 : 307).

See Rodell ( 1962 : 700).

See Landau ( 2012 : 403).

See Shapiro ( 1995 : 43).

Using Dobbin and Sutton’s terms—‘weak states’ and ‘rights revolution’—on a different context.

See Landau ( 2012 : 404).

Boudin, L.B. 1911. Government by judiciary. Political Science Quaterly 26. Issue 2 [in www.jstor.org/stable/view/2141031 ].

Cappelletti, Mauro. 1990. Des juges législateurs?. Le pouvoir des juges . Aix-en-Provence/Paris.

Google Scholar  

Kmiec, Keenan D. October 2004. The origin and current meanings of ‘Judicial Activism’. California Law Review 92. Issue 5.

Kumar, Vipin. 2014. The Role of Judicial Activism in the Implementation and Promotion of Constitutional Laws and Influence of Judicial Overactivism. IOSR Journal Of Humanities And Social Sciences 19, Issue 2.

Landau, David. 2012. The reality of Social Rights Enforcement. Harvard International Law Review 53.

Landfried, Christine. 1995. Germany. In The Global Expansion of Judicial Power (edited by C. Neal Tate & Torbjörn Vallinder): New York University Press. New York/London.

Posner, Richard A. 1999. The Federal Courts: challenge and reform : Harvard University Press.

Rodell, Fred. 1962. Judicial Review: Its Role in Intergovernmental Relations: A Symposium: For Every Justice, Judicial Deference Is a Sometime Thing. Faculty Scholarship Series . Paper 2755 [in http://digitalcommons.law.yale.edu/fss_papers ].

Shapiro, Martin. 1995. The United States. in The Global Expansion of Judicial Power (edited by C. Neal Tate & Torbjörn Vallinder): New York University Press. New York/London.

Sowell, Thomas. 1989. Judicial Activism Reconsidered. In Essays in Public Policies 13. Stanford University.

Sunstein, Cass R. 2005. Radicals in Robes. Why Extreme Right-Wing Courts Are Wrong for America . New York.

Tate, C. Neal. 1995. Why the Expansion of Judicial Power? in The Global Expansion of Judicial Power (edited by C. Neal Tate & Torbjörn Vallinder): New York University Press. New York/London.

Tate, C. Neal and Vallinder, Torbjörn. 1995. The Global Expansion of Judicial Power: The Judicialization of Politics. in The Global Expansion of Judicial Power (edited by C. Neal Tate & Torbjörn Vallinder): New York University Press. New York/London.

Urbano, Maria Benedita. 2010.The law of judges: attempting against Montesquieu’s legacy or a new configuration for an old principle?. Boletim da Faculade de Direito da Universidade de Coimbra LXXXVI.

Young, Ernest A. 2002. Judicial Activism and Conservative Politics. University of Colorado Law Review 73. 4.

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Urbano, M.B. (2015). Politics and the Judiciary: A Naïve Step Towards the End of Judicial Policy-Making. In: Coutinho, L., La Torre, M., Smith, S. (eds) Judicial Activism. Ius Gentium: Comparative Perspectives on Law and Justice, vol 44. Springer, Cham. https://doi.org/10.1007/978-3-319-18549-1_11

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13 The Judicialization of Politics

Ran Hirschl is Professor of Political Science and Law and Canada Research Chair in Constitutionalism, Democracy, and Development at the University of Toronto.

• Published: 05 September 2013
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The judicialization of politics—the reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies—is arguably one of the most significant phenomena of late twentieth- and early twenty-first-century government. Armed with newly acquired judicial review procedures, national high courts worldwide have been frequently asked to resolve a range of issues from the scope of expression and religious liberties and privacy to property, trade and commerce, education, immigration, labor, and environmental protection. This article analyzes the scope, nature, and causes of the judicialization of politics, as well as judicial behavior, recent jurisprudence of courts and tribunals worldwide, and the judicialization of “mega-politics” or “pure” politics—the transfer to courts of contentious issues of an outright political nature and significance. Questions of pure politics include electoral processes and outcomes, restorative justice, regime legitimacy, executive prerogatives, collective identity, and nation building. These developments reflect the demise of the “political question” doctrine, and mark a transition to what is termed “juristocracy.”

The judicialization of politics—the reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies—is arguably one of the most significant phenomena of late twentieth and early twentyfirst century government. Armed with newly acquired judicial review procedures, national high courts worldwide have been frequently asked to resolve a range of issues, varying from the scope of expression and religious liberties, equality rights, privacy, and reproductive freedoms, to public policies pertaining to criminal justice, property, trade and commerce, education, immigration, labor, and environmental protection. Bold newspaper headlines reporting on landmark court rulings concerning hotly contested issues—same sex marriage, limits on campaign financing, and affirmative action, to give a few examples—have become a common phenomenon. This is evident in the United States, where the legacy of active judicial review recently marked its bicentennial anniversary; here, courts have long played a significant role in policymaking. And it is just as evident in younger constitutional democracies that have established active judicial review mechanisms only in the last few decades. Meanwhile, transnational tribunals have become the main loci for coordinating policies at the global or regional level, from trade and monetary issues to labor standards and environmental regulations.

However, the growing political significance of courts has not only become more globally widespread than ever before. It has also expanded its scope to become a manifold, multifaceted phenomenon that extends well beyond the now “standard” concept of judge-made policy-making, through ordinary rights jurisprudence and judicial redrawing of legislative boundaries between state organs. The judicialization of politics now includes the wholesale transfer to the courts of some of the most pertinent and polemical political controversies a democratic polity can contemplate. Recall such matters as the outcome of the American presidential election of 2000 or the Mexican presidential election in 2006, the war in Chechnya, the Pervez Musharraf-led military coup d’état in Pakistan, Germany’s place in the EU, restorative justice dilemmas in post-authoritarian Latin America, post-Communist Europe, or post-apartheid South Africa, the secular nature of Turkey’s political system, Israel’s fundamental definition as a “Jewish and Democratic State,” or the political future of Quebec and the Canadian federation: all of these and many other “existential” political controversies worldwide have been framed as constitutional issues. And this has been accompanied by the concomitant assumption that courts—not politicians or the demos itself—are the appropriate fora for making these key decisions.

Despite the increasing prevalence of this trend, academic discourse addressing the judicialization of politics worldwide remains surprisingly sketchy. With a few notable exceptions (e.g. Tate and Vallinder 1995 ; Goldstein et al. 2001 ; Hirschl 2002 ; 2004 a ; 2006 ; Ferejohn 2002 ; Shapiro and Stone Sweet 2002 ; Pildes 2004 ; Sieder et al. 2005 ), the judicialization of politics is often treated as an obvious byproduct of the global convergence toward constitutional supremacy and the prevalence of rights discourse. What is more, the judicialization of politics is often used indiscriminately to refer to what in fact are several distinct phenomena: these range from judicial activism and rights jurisprudence to debates over judicial appointments and the politicization of the judiciary—the inevitable flip side of judicialization.

This chapter presents a lucid vocabulary and a coherent framework for analyzing the scope, nature, and causes of the judicialization of politics as we now know it. I begin with a classification of the various categories and instances of the trend that is broadly referred to as the judicialization of politics. I illustrate the distinct characteristics of each of these groupings of judicialization through recent jurisprudence of courts and tribunals worldwide. Special attention is given to the judicialization of “mega” or “pure” politics—by this I mean the transfer to courts of contentious issues of an outright political nature and significance. In the chapter’s second part, I explore the main theories that purport to identify the central institutional, societal, and political conditions that are conducive to the judicialization of politics.

1 What is the Judicialization of Politics?

The “judicialization of politics” is an often umbrella-like term referring to what are really three interrelated processes. At the most abstract level, the term refers to the spread of legal discourse, jargon, rules, and procedures into the political sphere and policy-making fora and processes. The ascendancy of legal discourse and the popularization of legal jargon is evident in virtually every aspect of modern life. It is perhaps best illustrated by the subordination of almost every decision-making forum in modern rule-of-law polities to quasi-judicial norms and procedures. Matters that had previously been negotiated in an informal or nonjudicial fashion have now come to be dominated by legal rules and procedures ( Sieder et al. 2005 , 5). The proliferation of legalistic discourse and procedures seems to reflect the common translation of fundamental justice into what is predominantly procedural fairness. Judicialization of this type is inextricable from law’s capture of social relationships and popular culture and its expropriation of social conflicts ( Teubner 1987 ; Habermas 1988 ). Related aspects of this type of “juridification” of modern life have also been identified by early legal sociologists—for example, Henry Maine and Emile Durkheim’s “from status to contract” thesis ( Maine 2000 [1861] ; Durkheim 1964 [1893] ); or Max Weber’s emphasis on the rise of a formal, unambiguous, and rational legal system in Western societies ( Weber 1978 [1914] ).

A second, more concrete aspect of the judicialization of politics is the expansion of the province of courts and judges in determining public policy outcomes, mainly through administrative review, judicial redrawing of bureaucratic boundaries between state organs, and “ordinary” rights jurisprudence. Not a single week passes by without a national high court somewhere in the world releasing a major judgment pertaining to the scope of constitutional rights protections or the limits on legislative or executive powers. Of these, the most common are cases dealing criminal due process rights and other aspects of procedural justice. Also common are rulings involving classic civil liberties, various aspects of the rights to privacy, and formal equality—all of which expand and fortify the boundaries of the constitutionally protected private sphere, often perceived as threatened by the long arm of the encroaching state and its regulatory laws ( Hirschl 2004 a , 103–18). This ever-expanding body of civil liberties jurisprudence has essentially redefined the boundaries of the private sphere in constitutional democracies, and has transformed numerous policy areas involving individual freedoms.

The proliferation of administrative agencies in the modern welfare state has expanded the scope of administrative review by courts. More often than not, such judicial involvement in public policy-making is confined to procedural aspects, focusing on process rather than substance. Drawing upon basic norms from contract law, constitutional law, and mainly administrative law, courts oversee and enforce the application of due process, equal opportunity, transparency, accountability, and reasonableness in public policy-making. It is therefore not surprising that judicialization of this type dominates the justice system itself, from civil procedure to criminal due process; it is particularly noticeable in other process-heavy policy areas such as immigration, taxation, or public tenders. But it is also clearly evident in countless other areas, from urban planning and public health to industrial relations and consumer protection. In short, whereas the first type of judicialization may be described as “juridification of social relations,” judicialization of this second type manifests itself mainly in the domain of procedural justice and formal fairness in public policymaking processes.

Over the last two decades, the judicialization of public policy-making has also proliferated at the international level ( Romano 1999 ; Slaughter 2000 ; Goldstein et al. 2001 ), with the establishment of numerous transnational courts and quasijudicial tribunals, panels, and commissions dealing with human rights, transnational governance, trade, and monetary affairs. Perhaps nowhere is this process more evident than in Europe (e.g. Weiler 1999 ; Stone Sweet 2000 ). The European Court of Justice (ECJ) interprets the treaties upon which the European Union is founded and the enormous body of EU secondary legislation, and has been awarded an increasingly important status by legislators, executives, and judiciaries in the now eastward-expanded EU, particularly with respect to interstate legal and economic disputes. The European Court of Human Rights in Strasbourg, the judicial arm of the Council of Europe, has in effect become the final court of appeal on human-rights issues for most of Europe. The judgments of these courts (as well as of other supranational tribunals such as the Inter-American Court of Human Rights) carry great symbolic weight and have forced many countries to incorporate transnational legal standards into their domestic legal system.

A similar process has taken place with respect to international trade disputes. Decisions by the World Trade Organization’s (WTO) dispute settlement mechanism have had far-reaching implications for trade and commerce policies at the national level. This is also the case even in the United States, where compliance with unfavorable rulings by foreign tribunals has always been a tough sell. The 1994 North America Free Trade Agreement (NAFTA) also establishes quasi-judicial dispute resolution processes regarding foreign investment, financial services, and antidumping and countervailing instances. Similar arrangements were established by the MERCOSUR agreement in South America and ASEAN in the Asia-Pacific region. In short, a large-scale transfer of crucial policy-making prerogatives—from policy-making bodies and majoritarian decision-making arenas at the national level to relatively insulated transnational entities and tribunals—has been rapidly established over the last few decades. This trend has been described as nothing short of a new world order ( Slaughter 2004 ).

A third emerging class of the judicialization of politics is the reliance on courts and judges for dealing with what we might call “mega-politics:” core political controversies that define (and often divide) whole polities. The judicialization of megapolitics includes a few subcategories: judicialization of electoral processes; judicial scrutiny of executive branch prerogatives in the realms of macroeconomic planning or national security matters (i.e. the demise of what is known in constitutional theory as the “political question” doctrine); fundamental restorative justice dilemmas; judicial corroboration of regime transformation; and above all, the judicialization of formative collective identity, nation-building processes and struggles over the very definition—or raison d’etre —of the polity as such—arguably the most problematic type of judicialization from a constitutional theory standpoint. These emerging areas of judicialized politics expand the boundaries of national high-court involvement in the political sphere beyond the ambit of constitutional rights or federalism jurisprudence, and take the judicialization of politics to a point that far exceeds any previous limit. More often than not, this trend is supported, either tacitly or explicitly, by powerful political stakeholders. The result has been the transformation of supreme courts worldwide into a crucial part of their respective countries’ national policymaking apparatus. Elsewhere I have described this process as a transition to juristocracy ( Hirschl 2004 a ).

It is difficult to overstate the profoundness of this transition. Whereas oversight of the procedural aspects of the democratic process—judicial monitoring of electoral procedures and regulations, for example—falls within the mandate of most constitutional courts, questions such as a regime’s legitimacy, a nation’s collective identity, or a polity’s coming to terms with its often less than admirable past, reflect primarily deep moral and political dilemmas, not judicial ones. As such, they ought—at least as a matter of principle—to be contemplated and decided by the populace itself, through its elected and accountable representatives. Adjudicating such matters is an inherently and substantively political exercise that extends beyond the application of rights provisions or basic procedural justice norms to various public policy realms. Judicialization of this type involves instances where courts decide on watershed political questions that face the nation, despite the fact that the constitution of that nation does not speak to the contested issues directly, and despite the obvious recognition of the very high political stakes for the nation. It is precisely these instances of judicialization of watershed national questions involving the intersection of very high political stakes with little or no pertinent constitutional guidelines that make the democratic credentials of judicial review most questionable. For it is ultimately unclear what makes courts the most appropriate forum for deciding such purely political quandaries.

The difference between the second and third face of judicialization is subtle, but it is important. It lies in part in the qualitative distinction between mainly procedural justice issues on the one hand, and substantive moral dilemmas or watershed political quandaries that the entire nation faces on the other. In other words, there seems to be a difference between the political salience of judicialization of public policymaking and the judicialization of mega-politics. Ensuring procedural fairness in public tenders is an important element of corruption-free public administration. But its political salience is not nearly as significant as that of purely political issues such as the place of Germany in the European Union, the future of Quebec and the Canadian federation, the constitutionality of the post-apartheid political pact in South Africa, or that of the boundaries of the Jewish collective in Israel.

But the difference between the second and third level of judicialized politics goes beyond the question of political salience. It depends on our conceptualization of the “political.” What counts as a “political” decision is not an easy question to answer. A political decision must affect the lives of many people. However, many cases that are not purely political (e.g. large class-action lawsuits) also affect the lives of many people. More importantly, since there is no plain and simple answer to the question “what is political?”—for many social theorists, the answer to that question would be “everything is political”—there cannot be a plain and simple definition of the judicialization of politics either. Likewise, what may be considered a controversial political issue in one polity (say, the right to have an abortion in the United States) may be framed as a clash between domestic law and supranational law in another country (e.g. Ireland), or may be a nonissue in yet another polity. That said, there seems to be a qualitative difference between the political salience of (for example) a court ruling refining the boundaries of the right to fair hearing or reviewing the validity of federal quotas on agricultural export, and a landmark judgment determining the legitimacy of a polity’s regime or a nation’s collective identity and membership boundaries. Indeed, few decisions may be considered more “political” than authoritatively defining a polity’s very raison d’être . That elusive yet intuitive distinction is what differentiates the judicialization of mega-politics form the first two levels of judicialization. Consider the following examples—all are seldom addressed by American constitutional theory, often preoccupied with rights jurisprudence and with matters American.

2 A New Frontier: The Judicialization of “Mega-Politics”

The judicialization of mega-politics includes several different types of controversies, not all of which are equally problematic from the standpoint of canonical constitutional theory. One emerging subcategory of judicialized mega-politics is the increased judicial scrutiny of core prerogatives of legislatures and executives in foreign affairs, fiscal policy, and national security. The Supreme Court of Canada was quick to reject the “political question” doctrine (nonjusticiability of explicitly political questions) following the adoption of the Canadian Charter of Rights and Freedoms in 1982. In its landmark ruling in Operation Dismantle (1985)—a challenge to the constitutionality of U.S. missile testing on Canadian soil—the Supreme Court of Canada held unanimously that “[i]f a case raises the question of whether executive or legislative action violated the Constitution, then the question has to be answered by the Court, regardless of the political character of the controversy … [d]isputes of a political or foreign policy nature may be properly cognizable by the courts.”

In the Chechnya Case (1995), the Russian Constitutional Court agreed to hear petitions by a number of opposition members of the Duma, who challenged the constitutionality of three presidential decrees ordering the Russian military invasion of Chechnya. Rejecting Chechnya’s claim to independence and upholding the constitutionality of President Yeltsin’s decrees as intra vires , the majority of the judges of this court stated that maintaining the territorial integrity and unity of Russia was “[a]n unshakable rule that excludes the possibility of an armed secession in any federative state.” In a similar fashion, the Israeli Supreme Court ruled in 2004 on the constitutionality and compatibility with international law of the West Bank barrier—a controversial network of fences and walls separating Israel from Palestinian territory. It also heard arguments concerning the constitutionality of matters such as the Oslo Peace Accords or Israel’s unilateral pullback from the Gaza Strip. In recent years, constitutional courts in many countries have also begun the scrutiny of “processlight” measures adopted by governments to combat terrorism in the so-called “war on terror” era. In 1999, the Israeli Supreme Court banned the use of torture in interrogations by Israel’s General Security Services. In late 2006 it ordered the weighing of security considerations against potential harm to civilians in determining the legality of “targeted killings” (the controversial practice of assassinating suspected Palestinian terrorists by Israel’s security forces).

A slightly different, yet equally telling manifestation of judicial scrutiny of core executive prerogatives—this time in the context of national fiscal and welfare policy—can be found in the 1995 Austerity Package Decisions (the so-called “Bokros cases”) by the Hungarian Constitutional Court. Here, the Court drew upon the concepts of reliance interest and legal certainty to strike down twenty-six provisions of a comprehensive economic emergency plan introduced by the government, the major thrust of which was a substantial cut in the government’s expenditures on welfare benefits, pension allowances, education, and health care in order to reduce Hungary’s enormous budget deficit and foreign debt. An equally significant manifestation of the judicialization of contentious macroeconomic matters is the Supreme Court of Argentina’s October 2004 ruling (the so-called Corralito Case ) on the constitutionality of the government’s “pesification” plan (total convergence of the Argentine economy into pesos) and the corresponding freezing of savings deposits nominated in U.S. dollars—a fall-out of Argentina’s major economic crisis of 2001.

A second area of increased judicial involvement in mega-politics is the corroboration of regime change. The most obvious example here is the “constitutional certification” saga in South Africa: This was the first time a constitutional court refused to accept a national constitutional text drafted by a representative constitutionmaking body. Other recent manifestations of this type of judicialization of megapolitics include the 2004 dismissal by the Constitutional Court of South Korea of the impeachment of President Roh Moo-hyun by South Korea’s National Assembly (the first time in the history of modern constitutionalism that a president impeached by a legislative body has been reinstated by a judicial body); the rarely acknowledged yet astonishing restoration of the 1997 Fijian constitution by the Fijian Court of Appeals in Fiji v . Prasad 2001 (the first time in the history of modern constitutionalism that a polity’s high court restored a constitution and the democratic system of government created by it); and the crucial yet seldom recognized involvement of the Pakistan Supreme Court in political transformation in that country (since 1990 Pakistan has known five regime changes and the Pakistan Supreme Court has played a key role in each of these radical transitions).

The judicialization of mega-politics is also increasingly evident in a third area: judicial oversight of electoral processes, or what may be referred to as “the law of democracy” ( Miller 2004 ). The most prevalent subcategory here is the judicial scrutiny of the pre-electoral process in virtually all countries where elections, referenda, or plebiscites take place. In some instances this is done via scrutiny, at times compulsory, of candidates and voter registry by electoral commissions that often comprise judges. In terms of jurisprudence, courts are frequently called upon to decide on matters such as party funding, campaign financing, and broadcast advertising during election campaigns; the redrawing of electoral districts; and the approval or disqualification of political parties and candidates. Over the last decade, courts in a number of countries, notably Bangladesh, Belgium, India, Israel, Spain, Thailand, and Turkey, have banned (or come close to banning) popular political parties from participating in national elections. During the last decade alone, constitutional courts in over twenty-five countries have been called upon to determine the political future of prominent leaders through impeachment or disqualification trials. Courts approved (or disapproved) the extension of Colombia’s President Alvaro Uribe, Uganda’s President Yoweri Museveni, and Russia’s President Boris Yeltsin’s terms in office. Pakistan’s former prime ministers Benazir Bhutto and Nawaz Sharif, and the Philippines’ President Joseph Estrada—to give a few examples—have all had their political fate determined by courts. To that list one could add corruption indictments against heads of state (e.g. Italy’s Silvio Berlusconi, Peru’s Alberto Fujimori, or Thailand’s Thaksin Shinawatra), and “political trials,” in which prominent opposition candidates and leaders have been disqualified or otherwise removed from the race by a politicized judiciary.

Courts have also become ultimate decision-makers in disputes over national election outcomes, for example in Taiwan (2004), Georgia (2004), Puerto Rico (2004), Ukraine (2005), Congo (2006), Italy (2006), where the Constitutional Court approved a win of fewer than 25,000 votes by center-left leader Romano Prodi in one of Italy’s closest elections. Likewise, a series of election appeals and counter-appeals culminated in Mexico’s Federal Electoral Court’s dismissal of leftist runner-up Andres Manuel Lopez Obrador’s claim for a massive fraud by right-wing candidate and election winner Felipe Calderon in the July 2006 presidential election in that country. Calderon won the election by a less than 0.6 percent margin. Constitutional courts have also played key roles in deciding election outcomes in states and provinces. Even the fate of elections in the exotic island nations of Madagascar and Trinidad and Tobago has been determined by judicial tribunals. Clearly, the Bush v . Gore courtroom struggle over the fate of the American presidency was anything but an idiosyncratic moment in the recent history of comparative constitutional politics.

A fourth emerging area of mega-politics that has been rapidly judicialized over the past few decades is that of transitional or restorative justice. Quasi-judicial “truth commissions” or special tribunals dealing with core issues of transitional justice have been established in dozens of countries from El Salvador to Ghana. Recall, for example, the judicialization of restorative justice in the early years of the post-apartheid era in South Africa: Here, the “amnesty-for-confession” formula had been given a green light by the South African Constitutional Court in AZAPO (1996) allowing establishment of the quasi-judicial Truth and Reconciliation Commission. Similarly, the Pinochet affair can be thought of as an example of the judicialization of restorative justice dilemmas in post-authoritarian Latin America. Another example would be the major role played by the newly established constitutional courts in post-Communist Europe: these courts have played a central role in confronting their respective countries’ pasts through the trials of former officeholders who committed what are now considered to be human rights violations during the Communist era. A paradigmatic case here is the 1993 decision of the constitutional court of the Czech Republic to uphold a law that declared the entire Communist era in the former Czechoslovakia illegal. These courts also made landmark rulings pertaining to Holocaust-related reparative justice and restitution policies. Yet another example would be the wholesale judicialization of the battle over the status of indigenous peoples in so-called “settler societies,” particularly Australia, Canada, and New Zealand.

The judicialization of restorative justice is also evident at the transnational level. Here too there are many examples. The International Criminal Court (ICC) (ratified by ninety countries as of 2006) was established in 1998 as a permanent international judicial body with potentially universal jurisdiction pertaining to genocide, crimes against humanity, war crimes, and so on. The International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague was established in 1993. Another example here is the International Criminal Tribunal for Rwanda (ICTR) in Arusha, Tanzania, established in 1995. Also included in this category are the “hybrid courts” in Cambodia, East Timor, Kosovo, and Sierra Leone, which are all tribunals working within the rules and regulations of the domestic legal system, and applying a compound of international and national, substantial and procedural, law. Notorious leaders such as Slobodan Milosevic, Charles G. Taylor, and Saddam Hussein, were all put to trial before this new nexus of war crime tribunals.

But the clearest manifestation of the wholesale judicialization of core political controversies—arguably, the type of judicialization of politics that is the hardest to reconcile with canonical constitutional theory concerning the role of courts in a democracy—is the growing reliance on courts for contemplating the very definition, or raison d’être , of the polity as such. This type of judicialized “mega-politics” is common in fragmented polities facing deep ethnic, linguistic, or religious cleavages. A few examples of this phenomenon include: the central role the Turkish Constitutional Court has played in preserving the strictly secular nature of Turkey’s political system, by continually outlawing antisecularist political forces and parties; the landmark jurisprudence of the Supreme Court of India pertaining to the status of Muslim and Hindu religious personal laws; the crucial role of courts in Egypt, Pakistan, Malaysia, or Nigeria in determining the applicability of Islamic Shari’a law in public life; the wholesale transfer of the deep secular/religious cleavage in Israeli society to the Israeli judiciary through the judicialization of the question of “who is a Jew?” and the corresponding entanglement of the Israeli Supreme Court in interpreting Israel’s fundamental definition as a “Jewish and Democratic State.” An example here is the German Federal Constitutional Court’s key role in the creation of the unified Germany, illustrated for example in the Maastricht Case (1993): here, the Court drew upon Basic Law provisions to determine the status of post-unification Germany vis-à-vis the emerging European supranational polity. Another “textbook” illustration is the unprecedented involvement of the Canadian judiciary in dealing with the status of bilingualism and the political future of Quebec and the Canadian federation, including the Supreme Court of Canada’s landmark ruling in the Quebec Secession Reference (1998)—the first time a democratic country had ever tested in advance the legal terms of its own dissolution. Following a slim loss by the Quebecois secessionist movement in the 1995 referendum, the federal government was quick to draw upon the reference procedure to ask the Supreme Court to determine whether a hypothetical unilateral secession declaration by the Quebec government would be constitutional. The court accepted the challenge with open arms and took the liberty to articulate with authority the fundamental pillars of the Canadian polity in a way no other state organ has ever done before.

In short, “nothing falls beyond the purview of judicial review; the world is filled with law; anything and everything is justiciable,” as Aharon Barak, the former Chief Justice of the Supreme Court of Israel, once said; and this appears to have become a widely accepted motto by courts worldwide. While many public policy matters still remain beyond the ambit of the courts ( Graber 2004 ; Schauer 2006 ), in numerous countries throughout the world, there has been a growing legislative deference to the judiciary, an increasing (and often welcomed) intrusion of the judiciary into the prerogatives of legislatures and executives, and a corresponding acceleration of the process whereby political agendas have been judicialized. Together, these developments have helped to bring about a growing reliance on adjudicative means for clarifying and settling fundamental moral controversies and highly contentious political questions, and have transformed national high courts into major political decisionmaking bodies.

The wave of judicial activism that has swept the globe in the last few decades has not bypassed the most fundamental issues a democratic polity ought to address—whether it is the corroboration of new political regimes, coming to terms with its own (often not so admirable) past, or grappling with its embedded collective identity quandaries. Although foundational political questions of this nature may have certain important constitutional aspects, they are neither purely, or even primarily, legal dilemmas. As such, one would think, they ought to be resolved, at least on the level of principle, through public deliberation in the political sphere. Nonetheless, constitutional courts throughout the world have gradually become major decisionmaking bodies for dealing with precisely such dilemmas. Fundamental restorative justice, regime legitimacy, and collective identity questions have been framed in terms of constitutional claims (often for rights and entitlements), and as such have rapidly found their way to the courts.

3 Why the Judicialization of Politics?

Scholars have identified a number of possible reasons and explanations for the judicialization of politics. Akin to any other major sociolegal phenomenon, no simple or single explanation can account for its wide range of manifestations. Given that a confluence of elements must exist, it is most productive to consider the factors that are, ceteris paribus , conducive to the judicialization of politics. These may be grouped into three main categories: institutional features, judicial behavior, and political determinants.

3.1 Institutional Features

As a bare minimum, the judicialization of politics requires the existence of a reasonably independent judiciary, with a well-respected and fairly active apex court. It is also generally agreed that there is a close affinity between the existence of a constitutional catalogue of rights and viable judicial review mechanisms in a polity, and judicial activism on the part of that polity’s judiciary. If the constitution does not list tangible and defensible rights that individuals hold against the state, then judicial review is based on limited ultra vires principles, and is generally confined to procedural matters. In these circumstances, intervention by the judiciary in fundamental moral controversies or in highly political or politicized issues is generally unlikely. On the other hand, the existence of a constitutional catalogue of rights and judicial review mechanisms not only provides the necessary institutional framework for courts to become more vigilant in their efforts to protect the fundamental rights and liberties of a given polity’s residents; it also enables them to expand their jurisdiction to address vital moral dilemmas and political controversies of crucial significance to that polity.

What is more, the existence of a constitutional framework that facilitates judicial activism may provide political actors who are unable or unwilling to advance their policy preferences through majoritarian decision-making arenas with an alternative institutional channel (the courts) for accomplishing their policy goals. Likewise, the existence or adoption of a constitutional catalogue of rights is likely to increase the public’s “rights awareness.” It also allows for what may be referred to as “judicialization from below”—legal mobilization by groups and movements that aim to advance social change through constitutional rights litigation. Therefore, in countries where bills of rights and active judicial review procedures have been adopted, one can expect a significant growth in the frequency and scope of the exercise of judicial review, and a corresponding intrusion by the judiciary into the prerogatives of both legislatures and executives. Likewise, the adoption of multilateral treaties and international agreements that contain justiciable provisions, and the accompanying establishment of adjudication or arbitration tribunals at the supranational level, are preconditions for the judicialization of international trade disputes.

Models of judicial review employed by constitutional democracies vary significantly in their procedural characteristics—a fact that has important implications for the scope and nature of judicial review in these countries. A pertinent distinction here is between a priori or abstract review and a posteriori or concrete review—whether the constitutionality of a law or administrative action is determined before or after it takes effect, or whether a declaration of unconstitutionality can be made in the absence of an actual case or controversy; in other words, the distinction is between hypothetical “what if” scenarios (“abstract” review) and judicial review that may take place only in the context of a specific legal dispute (“concrete” review). In the United States, only a posteriori and concrete judicial review is allowed. Judicial review of legislation, whether exercised by lower courts or by the Supreme Court, is a power that can only be exercised by the courts within the context of concrete adversary litigation; i.e. when the constitutional issue becomes relevant and requires resolution in the decision of the case. In France, by contrast, judicial review is limited to an a priori and abstract judicial review. The Conseil Constitutionnel has pre-enactment constitutional review powers, but no power to nullify a law after it has been enacted by the legislature.

A number of leading democracies feature combined a priori/a posteriori, abstract and concrete review systems. In the latter capacity, national high courts in such countries could outlaw a statute before it was formally enacted on the basis of hypothetical constitutional arguments about its potential effect. Judicial review in Canada, for example, is not limited to review within the context of concrete adversary litigation. The reference procedure allows both the federal and provincial governments in Canada to refer proposed statutes or even questions concerning hypothetical legal situations to the Supreme Court or the provincial courts of appeal for an advisory (abstract) opinion on their constitutionality. It is hardly surprising therefore that some of the most contentious issues in Canadian politics of the last few decades have reached the Supreme Court through the reference procedure.

Moreover, unlike in the United States, most countries that employ an a priori and abstract review model allow public officials, legislators, cabinet members, and heads of state to initiate judicial scrutiny of proposed laws and hypothetical constitutional scenarios, thereby providing a constitutional framework hospitable to the judicialization of politics and the accompanying politicization of the judiciary. In France and Italy, for example, the initiation of constitutional litigation in constitutional courts is limited to elected politicians. In other countries (Germany and Spain, for example) elected officials may challenge proposed legislation through the abstract a priori review. In short, a system that permits a priori and abstract review initiated by politicians would appear to have a greater potential for generating high levels of judicialized policy-making using the process of constitutional review ( Stone 1992 ). That said, scholars have correctly pointed out that “the apparently more restrictive combination of a posteriori and concrete review has hardly relegated the U.S. Supreme Court to a minor policy role” ( Tate 1992 , 6).

Another pertinent distinction is that which exists between decentralized (all courts) and centralized (constitutional court) review. In a decentralized system (for example, in the U.S.), judicial review is an inherent competence of almost all courts in nearly any type of case and controversy. The centralized judicial review system (often referred to as “constitutional review”) is characterized by having only a single state organ (a separate judicial body in the court system or an extrajudicial body) acting as a constitutional tribunal. This model of judicial review has been adopted by many European countries that follow various branches of the civil law tradition (such as Germany, Austria, Italy, and Spain), as well as by almost all new democracies in post-Communist Europe. Some new constitutionalist countries (such as Portugal) employ a combined decentralized/centralized model of judicial/constitutional review.

Other variables being equal, the impact of the judiciary on public policy outcomes is likely to be more significant under a decentralized, all-court review system. As Tate points out, “restricting the power to declare legislation and regulations unconstitutional to a constitutional court … sharply reduces the number of occasions and range of policy issues on which courts can be invited (or can invite themselves) to exercise judicial review” (1992, 7). That said, administrative review—however limited—is always available to the courts in most centralized review countries. Moreover, the symbolic importance of landmark high-court decisions in such countries is at least as significant as that of national high-court rulings in countries employing a decentralized review system. Germany’s Federal Constitutional Court and the youthful Hungarian Constitutional Court are perhaps the most frequently mentioned examples of centralized judicial bodies that not only fulfill the sole function of judicial review in their respective countries, but have also become crucial policy-making bodies at the national level ( Kommers 1997 ; Sólyom and Brunner 2000 ).

Another important aspect of judicial review that has implications for the judicialization of politics is the question of standing ( locus standi ) and access rights: Who may initiate a legal challenge to the constitutionality of legislation or official action; and at what stage of the process may a given polity’s supreme court become involved. In the United States, standing rights have been traditionally limited to individuals who claim to have been affected by an allegedly unconstitutional legislation or official action. The U.S. Supreme Court will not hear a challenge to the constitutionality of legislation unless all other possible legal paths and remedies have been exhausted. Moreover, the Court has full discretion over which cases it will hear—its docket therefore consists of “discretionary leave” cases, rather than appeals by right. However, constitutional democracies that employ a priori and abstract judicial review (such as France) allow for, and even encourage, public officials and political actors to challenge the constitutionality of proposed legislation. Several polities authorize their constitutional court judges, in an ex-officio capacity, to initiate proceedings against an apparently unconstitutional law. Other countries (South Africa, for example) impose mandatory referrals of constitutional questions by lower courts to a constitutional tribunal. And yet other countries, most notably Israel and India, allow private-person constitutional grievances to be submitted directly to their respective high courts. In addition to legislative frameworks, constitutional courts in most liberal democracies have continuously liberalized the rules of standing and expanded intervener (e.g. amicus curiae ) status. Other variables being equal, liberal standing and accessibility rights along with lowered barriers of nonjusticiability provides an important institutional channel through which ordinary citizens can challenge what they regard as infringements upon their constitutionally protected rights before a country’s judicial system, thereby increasing the likelihood of judicial involvement in public policymaking.

3.2 Judicial Behavior

The rise of “philosopher king courts” cannot be attributed solely or even primarily to the existence of a constitutional framework conducive to the judicialization of politics. It depends to a large extent upon judicial willingness to engage in public policy-making. In that respect, an increasing number of scholars suggest that judges do not behave or reach decisions in a way that is fundamentally different from other branches of government. Courts are political institutions not merely because they are politically constructed, but also because the determinants of judicial behavior are not distinctly different from the determinants of decision-making by other public officials. Judicial behavior, especially by constitutional courts in cases involving politically charged issues, may be driven by adherence to national meta-narratives, responsiveness to public opinion, personal ideological preferences, collegial considerations, prevalent attitudes within the legal profession, or strategic considerations vis-à-vis other national decision-making bodies.

Of particular relevance to the judicialization of politics are some insights drawn from the strategic approach to the study of judicial behavior. Like most other institutions, courts and judges are strategic actors to the extent that they seek to maintain or enhance their institutional position vis-à-vis other major national decision-making bodies or simply expand the ambit of their political influence and international profile. Accordingly, constitutional court rulings may not only be analyzed as mere acts of professional, apolitical jurisprudence (as doctrinal legalistic explanations of court rulings often suggest), or reflections of judicial ideology (as “attitudinal” models of judicial behavior might suggest), but also a reflection of judges’ own strategic choices ( Epstein and Knight 1998 ; 2000 ).

Courts may realize that there are circumstances—such as the changing fates or preferences of other influential political actors, or gaps in the institutional context within which they operate—in which they may be able to strengthen their own position by extending the scope of their jurisprudence and fortifying their status as crucial national policy-making bodies. The establishment of a supranational rule of law in Europe, for example, was driven in no small part by national judges’ attempts to enhance their independence, influence, and authority vis-à-vis other courts and political actors ( Alter 2001 ), as well as by a corresponding and continuous judicial activism by the ECJ ( Mattli and Slaughter 1998 ; Weiler 1999 ). Conversely, credible threats on the court’s autonomy and harsh political responses to unwelcome activism or interventions on the part of the courts have chilling effects on judicial decisionmaking patterns ( Epstein et al. 2001 ; Helmke 2005 ; Vanberg 2005 ). Courts must be responsive to the political environment in which they operate in other respects as well. Because justices do not have the institutional capacities to enforce their rulings, they must take into account the extent to which popular decision-makers will support their policy initiatives ( McGuire and Stimson 2004 ). Judges seem to care about their reputation within their close social milieu, court colleagues, and the legal profession more generally ( Baum 2006 ). And with the increasing internationalization of constitutional discourse, the judicialization of politics (primarily through constitutional rights litigation) may also support the interests of a supreme court seeking to increase its symbolic power and international prestige by fostering its alignment with a growing community of liberal democratic nations engaged in judicial review and rights-based discourses.

The centrality of judicial will in explaining the judicialization of politics is often emphasized by constitutional theorists critical of judicial activism. With a few exceptions, these critics often blame “power hungry” courts and judges for being too assertive and excessively entangled with moral and political decision-making, subsequently disregarding fundamental separation of powers and democratic governance principles. Even the more politically astute critics of the US Constitution’s expropriation by the United States Supreme Court are more concerned with the Supreme Court’s “imperialist” impulse than with the political conditions that promote the transition to juristocracy (e.g. Tushnet 1999 ; Bork 2001; Kramer 2004 ).

In my opinion, portraying courts and judges as the main source of judicialization is misguided. Courts are first and foremost political institutions. Like any other political institutions, they do not operate in an institutional or ideological vacuum. Their establishment does not develop and cannot be understood separately from the concrete social, political, and economic struggles that shape a given political system. Indeed, constitutionalization, political deference to the judiciary, and the expansion of judicial power more generally, are an integral part and an important manifestation of those struggles, and cannot be understood in isolation from them. And this brings us to the final category, political determinants of judicialization.

3.3 Political Determinants

A favorable constitutional framework and an active judiciary are important contributors to the judicialization of politics. However, this unprecedented level of political jurisprudence cannot develop, let alone be sustained, without the receptiveness and support, tacit or explicit, of the political sphere itself. Recent studies of comparative judicial politics propose a number of explanations for the expansion of judicial power and the corresponding judicialization of politics. These may be grouped into three subcategories: macro sociopolitical trends, the prevalence of rights discourse and litigation, and finally strategic maneuvering by powerful political stakeholders.

The proliferation of democracy worldwide is a main cause of judicialization and the expansion of judicial power more generally. By its very nature, the establishment of a democratic regime entails the establishment of some form of separation of powers among the major branches of government, as well as between the central and provincial/regional legislatures. It also entails the presence of a set of procedural governing rules and decision-making processes to which all political actors are required to adhere. The persistence and stability of such a system, in turn, requires at least a semi-autonomous, supposedly apolitical judiciary to serve as an impartial umpire in disputes concerning the scope and nature of the fundamental rules of the political game. Active judicial review is both a prerequisite and a byproduct of viable democratic governance in multilayered federalist countries ( Shapiro 1999 ). In other words, more democracy equals more courts. However, the “proliferation of democracy” thesis cannot provide a full explanation for the significant variations in levels of judicialization among new democracies. And it does not provide an adequate explanation for increased levels of judicialization in polities that have not undergone any apparent changes in their political regime.

From a functionalist standpoint, judicialization may emanate from the proliferation in levels of government and the corresponding emergence of a wide variety of semi-autonomous administrative and regulatory state agencies as the main driving forces behind the expansion of judicial power over the past few decades ( Shapiro and Stone Sweet 2002 ). According to this thesis, independent and active judiciaries armed with judicial review practices are necessary for efficient monitoring of the everexpanding administrative state. Moreover, the modern administrative state embodies notions of government as an active policy-maker, rather than a passive adjudicator of conflicts. It therefore requires an active, policy-making judiciary ( Feely and Rubin 1998 ). Along the same lines, the judicialization of politics may emanate from a general waning of confidence in technocratic government and planning, and a consequent desire to restrict the discretionary powers of the state, resulting in a diffusion of judicial power ( Shapiro 1999 ). It may also stem from the increasing complexity and contingency of modern societies ( Luhmann 1985 ), and/or from the creation and expansion of the modern welfare state with its numerous regulatory agencies ( Teubner 1987 ; Habermas 1988 ). Some accounts of the rapid growth of judicialization at the supranational judicial level portray it as an inevitable institutional response to complex coordination problems deriving from the systemic need to adopt standardized legal norms and administrative regulations across member states in an era of converging economic markets ( Stone Sweet 2000 ). In some instances, economic liberalization may be an important pro-judicialization factor. In the regulatory arena, the combination of privatization and liberalization may encourage “juridical regulation” ( Vogel 1998 ; Kelemen and Sibbitt 2004 ).

A second approach emphasizes the prevalence of rights discourse or greater awareness to rights issues, which is likely to yield what may be termed “judicialization from below.” Charles Epp (1998) suggests that the impact of constitutional catalogues of rights may be limited by individuals’ inability to invoke them through strategic litigation. Hence bills of rights matter to the extent that a support structure for legal mobilization—a nexus of rights-advocacy organizations, rights-supportive lawyers and law schools, governmental rights-enforcement agencies, and legal-aid schemes—is well developed. In other words, while the existence of written constitutional provisions is a necessary condition for the effective protection of rights and liberties, it is certainly not a sufficient one. The effectiveness of rights provisions in planting the seeds of social change in a given polity is largely contingent upon the existence of a support structure for legal mobilization, and more generally, sociocultural conditions that are hospitable for “judicialization from below.”

Legal mobilization from below is aided by the commonly held belief that judicially affirmed rights are self-implementing forces of social change removed from the constraints of political power. This belief has gained a near-sacred status in public discussion. The “myth of rights” as Stuart Scheingold (1974) termed it, contrasts the openness of judicial proceedings to the secret bargaining of interest group pluralism so as to underscore the integrity and incorruptibility of the judicial process. “The aim, of course, is to enhance the attractiveness of legal and constitutional solutions to political problems” (1974, 34). This is turn may lead a spread of populist “rights talk” and the corresponding impoverishment of political discourse ( Glendon 1991 ).

Similarly, an authentic, “bottom up” judicialization is more likely to occur when judicial institutions are perceived by social movements, interest groups, and political activists as more reputable, impartial, and effective decision-making bodies than other bureaucracy-heavy government institutions or biased majoritarian decisionmaking arenas ( Tate and Valinder 1995 ). An all-encompassing judicialization of politics is, ceteris paribus , less likely to occur in a polity featuring a unified, assertive political system that is capable of restraining the judiciary. In such polities, the political sphere may signal credible threats to an overactive judiciary that exert a chilling effect on courts. Conversely, the more dysfunctional or deadlocked the political system and its decision-making institutions are in a given rule-of-law polity, the greater the likelihood of expansive judicial power in that polity ( Guarnieri et al. 2002 , 160–81). Greater fragmentation of power among political branches reduces their ability to rein in courts, and correspondingly increases the likelihood of courts asserting themselves ( Ferejohn 2002 ).

A more “realist” approach suggests that the judicialization of politics is largely a function of concrete choices, interests, or strategic considerations by self-interested political stakeholders. From the politicians’ point of view, delegating policy-making authority to the courts may be an effective means of shifting responsibility, and thereby reducing the risks to themselves and to the institutional apparatus within which they operate. The calculus of the “blame deflection” strategy is quite intuitive. If the delegation of powers can increase credit or legitimacy, and/or reduce the blame placed on the politician as a result of the delegated body’s policy decision, then such delegation can benefit the politician ( Voigt and Salzberger 2002 ). At the very least, the transfer to the courts of contested political “hot potatoes” offers a convenient retreat for politicians who have been unwilling or unable to settle contentious public disputes in the political sphere. It may also offer refuge for politicians seeking to avoid difficult or “no win” decisions and/or avoid the collapse of deadlocked or fragile governing coalitions ( Graber 1993 ). Conversely, political oppositions may seek to judicialize politics (for example, through petitions and injunctions against government policies) in order to harass and obstruct governments ( Tate and Vallinder 1995 ). At times, opposition politicians may resort to litigation in an attempt to enhance their media exposure, regardless of the actual outcome of litigation ( Dotan and Hofnung 2005 ). A political quest for legitimacy often stands behind the transfer of certain regimechange questions to courts. (Consider the aforementioned Pakistani Supreme Court legitimization of the 1999 military coup d’état in that country). Empirical studies confirm that national high courts in most constitutional democracies enjoy greater public legitimacy and support than virtually all other political institutions. This holds true even when courts engage in explicit manifestations of political jurisprudence ( Gibson et al. 2003 ).

Judicial empowerment may also reflect the competitiveness of a polity’s electoral market or governing politicians’ time horizons. According to the “party alternation” thesis, for example, when a ruling party expects to win elections repeatedly, the likelihood of an independent and powerful judiciary is low. However, when a ruling party has a low expectation of remaining in power, it is more likely to support a powerful judiciary to ensure that the next ruling party cannot use the judiciary to achieve its policy goals ( Ramseyer 1994 ; Ginsburg 2003 ). Likewise, judicial empowerment may be driven by “hegemonic preservation” attempts taken by influential sociopolitical groups fearful of losing their grip on political power ( Hirschl 2004 a ). Such groups and their political representatives—who possess disproportionate access to, and influence over, the legal arena—are more likely to delegate power to the judiciary when they find strategic drawbacks in adhering to majoritartian decision-making processes or when their world-views and policy preferences are increasingly challenged in such arenas. For example, constitutional courts have become key guardians of secular or moderate interests against the increasing popularity of principles of theocratic governance ( Hirschl 2008 ). Likewise, when elected politicians are obstructed from fully implementing their own policy agenda, they may favor the active exercise of constitutional review by a sympathetic judiciary to overcome those obstructions ( Hirschl 2004 b ; Whittington 2005 ). Powerful national high courts may allow governments to impose a centralizing “one rule fits all” regime upon enormous and diverse polities ( Morton 1995 ; Goldstein 2001 ). (Think of the standardizing effect of apex court jurisprudence in vast and exceptionally diverse polities such as the United States or the European Union).

Perhaps the clearest illustration of the necessity of political support for the judicialization of mega-politics is the political sphere’s decisive reaction to instances of unwelcome judicial activism. Occasionally, courts may respond to counterestablishment challenges by releasing rulings that threaten to alter the political power relations in which the courts are embedded. However, as the recent history of comparative constitutional politics tells us, recurrent manifestations of unsolicited judicial intervention in the political sphere in general—and unwelcome judgments concerning contentious political issues in particular—have brought about significant political backlashes, targeted at clipping the wings of over-active courts. These include legislative overrides of controversial rulings, political tinkering with judicial appointment and tenure procedures to ensure the appointment of “compliant” judges and/or to block the appointment of “undesirable” judges, “court-packing” attempts by political power holders, disciplinary sanctions, impeachment or removal of “objectionable” or “over-active” judges, the introduction of jurisdictional constraints, or clipping jurisdictional boundaries and judicial review powers. In some instances (e.g. Russia in 1993, or Ecuador in 2004, or Pakistan in 2007) they have resulted in constitutional crises leading to the reconstruction or dissolution of high courts. To this we may add another political response to unwelcome rulings: more subtle, and possibly more lethal, sheer bureaucratic disregard for, or protracted or reluctant implementation of, unwanted rulings ( Rosenberg 1991 ; 1992 ; Garrett et al. 1998 ; Conant 2002 ). In short, the judicialization of politics is derivative first and foremost of political, not judicial, factors.

In sum, over the last few decades the world has witnessed a profound transfer of power from representative institutions to judiciaries, whether domestic or supranational. One of the main outcomes of this trend has been the transformation of courts and tribunals worldwide into major political decision-making loci. Over the last two decades, the judicialization of politics has extended well beyond the now “standard” judicialization of policy-making, to encompass questions of pure politics—electoral processes and outcomes, restorative justice, regime legitimacy, executive prerogatives, collective identity, and nation-building. These developments reflect the demise of the “political question” doctrine, and mark a transition to what I have termed “juristocracy.” Akin to any other transformation of that scope and magnitude, the judicialization of politics is not derivative of a single cause. Instead, a confluence of institutional, societal, and political factors hospitable to the judicialization of politics is necessary to create and sustain it. Of these factors, three stand out as being crucial: the existence of a constitutional framework that promotes the judicialization of politics; a relatively autonomous judiciary that is easily enticed to dive into deep political waters; and above all, a political environment that is conducive to the judicialization of politics.

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Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Legal and Constitutional Reform

Thanks to Jake Gersen, Todd Henderson, Daryl Levinson, Jens Ludwig, Richard McAdams, Tom Miles, Matthew Stephenson, David Strauss, Adrian Vermeule, Noah Zatz, and participants at a workshop at The University of Chicago Law School for helpful comments.

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This issue attests to the increasing significance of the empirical study of judges and judicial decisions. The two new empirical articles are just the latest in a cataract of studies that show that the political biases of judges, and other legally irrelevant characteristics of judges (such as race and sex), influence the voting patterns of judges and the outcomes of cases. Thomas Miles and Cass Sunstein are right that this movement deserves a name, and “the New Legal Realism,” in its invocation of the aspirations (but not the actual research) of the original legal realists, is an apt one.

In the legal literature, perhaps more than in the political science literature, research into judicial behavior is justified by the dividends it pays for legal reform. And, indeed, many legal scholars who have written about judicial bias have proposed legal reforms that are designed to minimize it. Some reformers focus on the appointments process, arguing that elected officials should avoid appointing or confirming partisans. Critics of recent appointments to the federal judiciary urge the Senate to refuse to confirm nominees who lack substantial nonpolitical qualifications. Many states have gone further and limited the role of elected officials in appointing judges: nonpartisan commissions screen or nominate judges. Miles and Sunstein, following an earlier proposal made by Emerson Tiller and Frank Cross, argue that threejudge appellate panels should always have judges from both parties: even though the two judges from one party can outvote the third, the presence of a different perspective moderates the thinking of the majority. Max Schanzenbach and Emerson Tiller similarly argue that an ideologically diverse panel should review sentencing decisions of trial judges. Concerns about bias have also influenced debates about doctrine and judicial deference, with some scholars arguing that judges should take deferential stances toward agency regulations, legislation, or political-branch interpretations of the Constitution, because otherwise judges will just substitute their own political views for those of elected officials or more qualified appointees. More ambitiously, modifying judicial voting rules could reduce the influence of bias that infects judges’ efforts to apply deference rules. And fears about bias have played a role in recent proposals to eliminate life tenure on good behavior for federal judges and replace it with term limits. Many of these proposals seem sensible, but there are two problems, one normative and one empirical.

2 Essay Statutes’ Domains and Judges’ Prerogatives David A. Strauss Gerald Ratner Distinguished Service Professor of Law, The University of Chicago Law School Judicial Decision-Making Statutory Interpretation Textualism

I am grateful to Jajah Wu for research assistance and to Douglas Baird, Rosalind Dixon, Saul Levmore, Victor Quintanilla, and Adam Samaha for comments on an earlier draft.

We are grateful to Susan Bandes, Elizabeth Foote, Jacob Gersen, Brian Leiter, Anup Malani, Richard McAdams, Elizabeth Mertz, Jonathan Nash, Eric Posner, Adam Samaha, Larry Solum, David Strauss, Noah Zatz, and participants in a work-inprogress lunch at The University of Chicago Law School for valuable comments. We are also grateful to the Chicago Judges Project, and in particular to Dean Saul Levmore, for relevant support.

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How Putin Controls Russia

By Isaac Chotiner

Last week, Vladimir Putin announced sweeping changes to the Russian constitution. Shortly afterward, the Prime Minister and his government resigned; there is no doubt that they did so at Putin’s behest. (On Monday, Putin formally submitted the constitutional changes and fired the country’s prosecutor general.)

Putin’s tenure as President is not supposed to extend beyond 2024, and the changes were widely seen as an attempt to extend his hold on power for as long as he deems fit. But, beyond that, no one really knows how he plans to reorganize the Russian state. To discuss Putin’s moves, I recently spoke by phone with Masha Lipman, a Moscow-based political analyst who has written extensively on Putin’s regime. During our conversation, which has been edited for length and clarity, we discussed Putin’s decision-making style, how his personality and leadership have changed over the past two decades, and the differences between his rule and the later years of the Soviet Union.

Four years ago, you wrote a piece for The New Yorker in which you argued, in part, “The political environment in Russia is growing more chaotic. Putin may be the Russian tsar, but it is less clear to what extent he is in control.” Is it more clear how much he is in control today?

The issue of control is tricky. If one talks about whether government management is efficient in Russia, then no, it is not. And Putin has repeatedly, over his very long time in office, spoken about the need to increase the productivity of labor and quite a few other very important goals. I wouldn’t say he has delivered so well on those. But, if we define control as control over the élite, over making the decisions, of course Putin’s fully in control. And the developments of the past few days are very clear and persuasive evidence of him being in control of making decisions.

How do you understand his moves over the past few days?

This is a demonstration of how Putin is ultimately in charge and how he can make very important decisions by himself in an atmosphere of complete secrecy. We still do not know who was aware of what was in store for the country three or four days ago, and to what extent there is anyone who can actually challenge his decisions, even verbally.

Putin rarely consults with anyone, and, even if he does, it is done in a totally opaque way. He’s rarely explicit. Even if he consults with some people in his circle, people leave without having a clear idea of what his goal is and have to guess. Sometimes they guess right. Sometimes they guess wrong. Sometimes they try to curry favor and succeed, sometimes not. At the end of the day he is the ultimate decision-maker. And the strategy and the grand plans that he has for Russia, in their entirety, exist only in his mind.

You say he’s in a position of complete control. But he’s not Kim Jong Un . He doesn’t just say, “This is a diktat. I am President for life.” He seems to have some interest in going through what appear to be, but of course are not, democratic procedures. Is that just for public show? Is it to keep people within the Russian system, the élites, happy in some way? It often seems like he’s a dictator who doesn’t fully act the way people tend to think of dictators acting, if that makes sense.

Yes. I think there’s truth to that. He is way more sophisticated than to just say, “I rule by diktat and whatever I say is the law,” even if in practice it often is this way. He already was facing this dilemma back in 2008, when the constitution required that he step down after two consecutive terms as President. And he was so popular at the time—his approval rating was above eighty per cent. He could have changed the constitution easily and said, “I’m President for life,” which was something that his colleagues in some of the former Soviet republics had done before him. But he wanted to look more, I don’t know, European. He wanted to look more democratic. He wanted to maintain the appearance of being engaged in a procedural democracy. So he actually did step down but remained in charge. He figured out the configuration in which he anointed his very loyal colleague, Dmitry Medvedev, as President, and he himself took the office of the Prime Minister. So on the surface, on the formal levels, he did step down as the constitution requires. But he remained informally in charge, and “informally” means a great deal more sometimes in Russia than the formal institutions do. But he still kept the appearance of democratic legitimacy. And I think he cares about that.

Putin has been the leader of Russia for more than two decades now. Do you divide up that time into different eras, based on Russia’s place in the world or by the ways in which he chose to rule?

One way to look at it is that, when Putin first came to power, he inherited Russia in a state of misery and turmoil. And he undertook to consolidate power in the Kremlin by weakening all these formally defined institutions of power. He brought back stability and he was able to deliver prosperity because of the high and rising price of oil. At that point, he was certainly concerned a great deal about being fully in control, and he was able to reinstate that control for himself. However, he was also concerned about things such as a national development, economic growth. And he was able to balance his top priority of political monopoly with socioeconomic goals of national development and economic growth.

In 2011 and 2012, the economic growth slowed down. He could no longer deliver as generously as he had before. And, also in 2011 and 2012, he faced mass public protests. That was the first important turning point, when, actually having faced the challenge of mass protests, he tilted the balance quite strongly in favor of control and away from national development and economic growth. And this tilt became even stronger in 2014, when he made arguably the riskiest move in his whole career and annexed Crimea. This came at a cost, of course, of Western sanctions and a slowdown of the economy. And again he sacrificed those goals for the sake of control within and the concept of sovereignty abroad, which Putin thinks should be totally unbound. Nobody should be able to dictate to Russia what to do. Nobody should be able to bend its will and to bend its policy.

In 2001, you wrote a piece for The New York Review of Books in which you talked about Putin’s contempt for the idea of a free press and argued that Putin has “only one view of what is good or bad for Russia.” But you also wrote in this piece that Putin is not an “anti-liberal. He is not even an anti-Westernizer.” Do you think that that’s still true? Or do you think that Putin has fundamentally changed over the past two decades?

I think that’s changed. Putin was concerned about undesired Western influence on Russian domestic affairs. But he moved slowly and cautiously at the beginning. He did kick out the Peace Corps from Russia. He did kick out the Open Society Foundation from Russia. There were new regulations that encroached on non-governmental organizations that were funded by the West. However, in general, he was strongly interested in attracting investment to Russia. He just tried to balance the two. He wanted the benefits of lucrative coöperation with the West, but tried to limit the ability of the West to influence Russian domestic affairs. So, again, he was able to balance that up until the same turning points, first 2011 and 2012, and then 2014.

Was he anti-liberal? Well, as far as the economy was concerned, during his first term, and I would say his second term, no. Was he anti-Western? Partly so, but Russia still remained quite open. And, if we talk about the media, Putin moved very early in his first Presidential term to take the national television channels under his control. He did this with by far the largest media outlets with the largest audience, but he wouldn’t interfere with niche media or liberal media, allowing them to preach to the converted, and operate reasonably freely, to the extent that they did not stir unwanted passions among the broader public. Following the protests in 2011 and 2012, niche liberal media for the first time came under pressure. I would not say this was horrible pressure. People who worked there were not terribly harassed. But they were manipulated. There were a variety of ways Putin was acting, mostly through the owners of those media outlets rather than persecuting or prosecuting individual editors or journalists.

There was one more turning point. The Putin of 2013 or Putin of 2012, when he started his third term after a four-year break, when Dmitry Medvedev had been President, was a different leader from the one that he was at the beginning of his Presidential career, in the two-thousands.

Do you view that as him personally changing in some way? Or do you think the changes in the way he governs were more due to the different circumstances Russia faced?

It’s really hard for me to say. Anybody who’s been in power for twenty years changes. So think of the experience that he has gained over time. During the twenty years that he has been in power, Russia went through terrorist attacks, the war in Chechnya, natural calamities, technological catastrophes, mass protests, and he coped with all those. And, of course, he’s a different man. And I would say even somebody who does not approve of his policies cannot help marvelling at how he’s been in power for twenty years and enjoys an approval rating of about seventy per cent, and this without keeping his nation at large in fear.

Not wanting to keep the vast majority of people in fear would certainly be another thing that distinguishes him from many other strongmen.

Yeah, there’s certainly a difference. If we look, for instance, at the Turkish leader Recep Tayyip Erdoğan , the way he treats the press is very well known. Turkey holds a very alarming record of keeping a lot of journalists in jail. This is not Russia’s case at all. There has been an emergence of new communication methods, of online communications of various sorts, and, of course, we have a lot of those in Russia. The media scene in Russia today has become even more vibrant. I’m talking about those media that are not the Kremlin’s voices. They are still engaged in investigative reporting and are working quite professionally. Working for these outlets is a bit risky, but the risk is not that the government will put you in jail. And actually, for anybody who’s interested, there’s a great deal to read on a daily basis in Russia of stuff that provides alternative information. And, by alternative, I mean alternative to the government point of view.

Obviously journalists have been killed in Russia, but do you think there’s a strategy behind the fact that Putin hasn’t gone the Erdoğan route of imprisoning them en masse?

Of course, sadly, journalists have been killed in Russia. But this is not the government’s policy. What happens in Russia, and unfortunately has happened quite a few times, is people with big clout—with big money, big power—settling scores with journalists whom they see as their adversaries. Putin is responsible for creating an atmosphere in the country in which such people can settle scores with their adversaries and get away with it. But it’s not that the government is after journalists. And there’s this huge difference in this respect between Turkey and Russia.

To the question of why that is, I think Putin is more sophisticated, and I think Putin’s regime is more sophisticated. And he prefers it to be that way. Many years ago, one of his trusted journalists reported that he said he wanted it to be so that there will be less freedom, but not much fear, either. Whether he indeed said that, because the journalist who reported this quote may have embellished it a little bit, I think that actually renders the gist of it.

Sadly, there’s been a great deal less freedom in Russia in the past few years and, recently, zero tolerance of his political opposition. The government has become more repressive. However, this has not turned Russia into a country where everyone lives in fear. I would say that, actually, compared to the Soviet period—and as a person of a certain age, I can compare it easily with the way it felt in the seventies and early eighties in Russia—I would say Russian people have a great deal more capacity for private pursuits of various sorts, as long as they are not political, in academics, in art, in literature. Politics, of course, is understood rather broadly in Russia. But I think there are more opportunities for consumption, for making money, for engaging in leisure, and favorite pastimes, etc. Foreign travel, of course, as well. So, in this sense, even critics of the regime would admit that the capacity for private pursuits remains fairly broad.

You mentioned that Putin’s approval rating is still around seventy per cent. In the West, we read about scattered protests, mostly in cities. How has the protest movement changed over the last couple of years as Putin has continued to entrench his role and his popularity?

I wouldn’t say the protest movement is not there. It is. And we had major protests in the past summer, in Moscow. That protest was strictly political, was public outrage about the egregious manipulation of the elections to the Moscow City Council. Because that protest was strictly political in nature, it was very brutally suppressed. Actually, the extent of brutality was unprecedented. And that in itself for a while fuelled the protesters even further. [At one protest , in July, 2019, police wielded nightsticks against protesters and arrested more than a thousand of them, including the opposition leader Alexey Navalny , who was sentenced to thirty days in prison.] However, the way it is in Russia—and I think this is what probably makes Russia different from some other countries where the regime is tough—the protests come in waves. And after the wave subsides, there is not much left there in terms of organization, in terms of an identification with a party, a movement, a leader. People rise and then they go back home and there is nothing for a long time.

On the other hand, socioeconomic protests have become fairly frequent and quite tenacious at times. The government is, I would say, much more tolerant toward a protest that has socioeconomic demands, and not infrequently they make some concessions so people won’t get enraged even further. These protests are not infrequent and are not limited to Moscow or St. Petersburg. There’s an ongoing protest, quite tenacious, in the Russian North, against the construction of a new landfill. People are really, really adamant on not allowing this new landfill to be built near their locality. But these protests are always limited to a locality and to a particular cause. Those protesting in one city would not reach out to other groups.

There’s reluctance to organize, as I mentioned earlier, around a political cause, a political leader, or form a political party or a movement. And this protest being limited to a particular cause or a locality is beneficial for the government. It is not true that the government doesn’t care what people feel or think. But the government certainly does not regard the people as a force to reckon with. A factor, yes, but not a force.

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By Masha Gessen

By Joshua Yaffa

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This Is a Crucial Moment to Stand Up to Islamophobia. Instead, Democrats Are Caving.

A 6-year-old Palestinian American boy, murdered in his Chicago home for being Muslim. Three Palestinian American college students, shot at in Vermont while out for a walk. An Arab American student hit by a car , while wearing a T-shirt with Arabic writing on it at Stanford University in California.

Since Oct. 7, when Hamas led a violent attack against civilians in Israel, there’s been a surge in reports of Islamophobic bias—the largest uptick since Donald Trump announced his Muslim ban in December 2015, according to Corey Saylor , director of research and advocacy at the Council on American-Islamic Relations.

Islamophobia tends to spike when there’s “any media exposure to Muslim-related issues,” according to one 2016 study by the University of Texas at Austin—and that’s been the case in the U.S. since the Israel-Hamas war began, leaving American Muslims afraid for their safety at home as they’re grieving the bloodshed abroad. (The war in Gaza has since killed upwards of 30,000 Palestinian civilians and left many more hungry as famine grips the enclave.)

This is the kind of time when you might expect Democrats—the party that has in recent decades identified themselves with equity and social justice —to recommit to fighting Islamophobia. Instead, they’re allowing Islamophobia to sabotage the judicial nomination of a highly qualified candidate: Adeel Mangi, an attorney from New Jersey, who, if confirmed, would become the first-ever Muslim attorney to sit on a federal appeals court.

In December, at Mangi’s confirmation hearing, GOP senators fired off leading questions laced with racism without a single reference to the nominee’s actual judicial experience. Adding insult to injury, Democratic Sens. Catherine Cortez Masto and Jacky Rosen of Nevada, along with West Virginia Sen. Joe Manchin, in recent weeks have all publicly said they would vote “no” on confirming Mangi, knowing full well their party’s razor-thin Senate majority means any defections will surely sink his nomination.

Confirming Mangi would add some sorely needed diversity to our nation’s courts—the federal bench is currently 66 percent white —and a check on biases. A study by the Center for American Progress found that judges belonging to different racial, ethnic, and religious groups use their unique backgrounds and life experiences to shape their rulings, and that it overall has a net positive impact on our judiciary. “Women judges and judges of color have spoken out about gender and racial bias on the courts and led calls for reforms,” said CAP, noting that judges of different backgrounds also enhance the courtroom experience for defendants and lawyers, regardless of their case’s outcome.

And the seat Mangi has been nominated to, the 3 rd U.S. Circuit Court of Appeals, is an especially important bench. It covers Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands, states where banks and other corporations tend to have a big presence. ( Over 50 percent of publicly traded companies are incorporated in Delaware.) Currently, the 3 rd Circuit has a 7–6 conservative majority, and Mangi’s confirmation would bring some much needed balance.

The Democrats who have vowed to vote “no” on Mangi’s confirmation are openly giving credence to Islamophobia, calling into question what the party actually stands for.

At a dark time for American Muslims, Mangi’s historic nomination feels like a rare bright spot. He represents the best of the immigrant struggle—coming into a new country, seeking a better life while adapting to a new culture. Mangi became a civil servant here in the U.S., fighting for democracy on behalf of vulnerable Americans, and it’s made our country better. Mangi, born and raised in Pakistan, studied law at Oxford University, then immigrated to the U.S. at 22 years old to attend Harvard University. He began practicing law in the U.S. and became the youngest associate to make partner at the New York law firm Patterson Belknap Webb & Tyler LLP. He worked on historic cases, including a landmark wrongful death lawsuit of a mentally ill Black man at a New York maximum security prison, which led to a $5 million payout to the victim’s family and required cameras and microphones to be installed throughout the prison.

Mangi also successfully fought for mosques to be built in New Jersey after their permits were denied, a case that earned a $3.25 million settlement and involved Donald Trump’s Justice Department. Mangi has also been a fierce advocate for immigrants, joining a coalition of different faith groups in advocating for keeping DACA, and the LQBTQ+ community, writing an amicus brief defending Title VII.

But Republicans have made Mangi the target of a baseless smear campaign that accuses him of antisemitism over a Rutgers University event he was once tangentially involved with.

Mangi was an advisory board member for Rutgers Law School’s Center for Security, Race and Rights , from 2019 to 2023. In 2021 the center co-sponsored a panel discussion, which was hosted by the People’s Forum, in honor of the 20 th anniversary of 9/11.* Sami Al-Arian was a featured speaker, a Florida professor who pleaded guilty to conspiracy charges related to the Palestinian Islamic Jihad (a group the U.S. considers a terrorist organization) and was sentenced to prison. However, CSRR did not have a hand in picking Al-Arian has the event’s speaker.

Mangi also testified that he served as an adviser to Rutgers Law School, meeting just once a year to offer advice on the university’s academic issues. He was not aware of that 9/11 anniversary event happening, let alone did he have a say in which speakers were selected. Yet, Republican Sen. John Kennedy challenged that assertion, asking Mangi, “Is this the way you celebrate 9/11?”

“I don’t know any of these people or that event,” said Mangi. “I certainly and unequivocally would condemn any terrorism.”

Other Republicans joined in, incessantly focusing on Mangi’s personal perspective on the Israel-Hamas war, while completely ignoring the experience and skills he would bring to the federal judiciary. “Do you believe that Jews are colonial settlers in Israel?,” asked Republican Sen. Tom Cotton . “Do you condemn the atrocities of the Hamas terrorists?,” asked Republican Sen. Ted Cruz .

Over and over again, Mangi explained that international policy matters were not something he could weigh in on. “I have no basis as a judicial nominee to cast views on the Middle East,” said Mangi , when responding to a question about whether he believes Israel is a violent settler colonial state from Republican Sen. Josh Hawley. However, Mangi made clear that he believes “the events of Oct. 7 were a horror involving the deaths of innocent civilians,” and that he had “no patience—none—for any attempts to justify or defend those events.”

This kind of racism has become commonplace for the GOP. Consider when TikTok CEO Shou Chew was called to testify before Congress, and Republicans continuously insisted he was affiliated with the Chinese Communist Party, despite Chew confirming he is a citizen of Singapore—which bans dual citizenship. And there’s Georgia Rep. Marjorie Taylor Greene, who, when calling to censure one of only three Muslim members of Congress, said “Representative Ilhan Omar of Somalia—I mean Minnesota.”

Donald Trump, the presumptive GOP nominee for president and the Republican Party’s standard bearer of extremism, told a crowd of supporters in December that immigrants coming into the U.S. are “poisoning the blood of our country.” Democrats are well aware of these bigoted tactics and recognize that the GOP has “concluded that racism might be bad morals but it’s good politics,” as New York Rep. Ritchie Torres put it to the New York Times .

Nevertheless, Cortez Masto was the first Democrat to publicly announce she would not vote for Mangi because of his affiliation with the Alliance of Families for Justice , a criminal justice reform group. She was quickly joined by fellow Nevada Sen. Jacky Rosen, who said she could not vote for Mangi because of “concerns I’ve heard from law enforcement in Nevada,” without offering more specific details. (Rosen’s decision ignores the other five law enforcement agencies that endorsed Mangi as someone who “demonstrated commitment to upholding the highest ethics and fair administration of the law.”)

Unsurprisingly, Manchin, who is officially retiring from Congress after his current term ends this year, also said he won’t vote for Mangi unless he can earn at least one vote from Republicans .

Since Rosen is up for reelection in a swing state this year, she’s probably taking note of what’s happening in other swing states, like Pennsylvania. The Judicial Crisis Network, an ultra-right-wing group focused on confirming conservative judges across the country, is funding ads smearing Mangi by declaring him antisemitic . The ads are also running in Montana in a pressure campaign to force the state’s sole Democratic lawmaker, Sen. Jon Tester, to vote “no” on Mangi.

In response to Republicans’ accusations of antisemitism, 15 Jewish advocacy groups that collectively represent more than 1 million Americans came together to offer a glowing endorsement of Mangi. And the American Jewish Committee not only endorsed him but went so far as to encourage senators to “disregard the untoward implications underlying that unnecessary and unhelpful line of questioning.” They were joined by the Anti-Defamation League—the most prominent Jewish advocacy group in the world—which also fully endorsed Mangi and suggested the way in which senators questioned him “appear to have been motivated by bias towards his religion.”

Illinois Democratic Sen. Dick Durbin, chairman of the Senate Judiciary Committee, which is responsible for confirming judicial nominees, defended Mangi and called out Republican Sen. John Kennedy, who asked the nominee how he celebrated 9/11. “Think about that for a second. Because [Mangi] is Muslim, the senator thought it was appropriate to ask him if it was appropriate to celebrate 9/11 in his home,” said Durbin . “He of course said ‘no.’ He was a resident of New York and thought it was a tragedy that occurred to our nation, and that he had friends and family who were affected by that tragedy.” Durbin urged his colleagues to dismiss Republicans’ smear campaign and evaluate Mangi on his record.

The White House has also tried damage control measures, demanding Cruz, Hawley, and Cotton apologize to Mangi. “He represents the best of America, and when confirmed, Mr. Mangi will not only make history—he will make an outstanding judge,” White House spokesman Andrew Bates told NBC News .

In this current climate, simply chiding the Republicans who harassed Mangi and urging Democrats to vote for him isn’t enough. The White House must hold Cortez Masto, Rosen, and Manchin accountable for the party’s vow to condemn “the decades-long campaign to demonize and dehumanize the Muslim faith community”—because if they don’t stand against Islamophobia at a moment like this, what do they stand for in the first place?

Correction, April 15, 2024: This piece originally misstated when Mangi served as an advisory board member for the Center for Security, Race and Rights. It was from 2019–23. This piece also misidentified the organizer of a Sept. 11 anniversary event in 2021. It was hosted by the People’s Forum, and the CSRR was a co-sponsor of the event.

Update, April 15, 2024: Rutgers Center for Security, Race and Rights reached out to Slate to clarify that it had no role in picking the speakers of the 9/11 anniversary event in 2021.

The New Rules of Political Journalism

In this election, the reporting strategies of the past will not be enough.

This is an edition of The Atlantic Daily, a newsletter that guides you through the biggest stories of the day, helps you discover new ideas, and recommends the best in culture. Sign up for it here.

In our digitally chaotic world, relying on the election-reporting strategies of the past is like bringing the rules of chess to the Thunderdome.

First, here are three new stories from The Atlantic :

• The October 7 rape denialists
• Finding justice in Palestine
• Biden’s safe, polite campaign stop in Scranton

This past weekend, I was on a panel at the annual conference of the International Symposium on Online Journalism, in beautiful downtown Austin. Several journalists discussed the question: Are we going to get it right this time? Have the media learned their lessons, and are journalists ready for the vertiginous slog of the 2024 campaign?

My answer: only if we realize how profoundly the rules of the game have changed.

Lest we need reminding, this year’s election features a candidate who incited an insurrection, called for terminating sections of the Constitution, was found liable for what a federal judge says was “rape” as it is commonly understood, faces 88 felony charges, and—I’m tempted to add “etcetera” here, but that’s the problem, isn’t it? The volume and enormity of it all is impossible to take in.

The man is neither a riddle nor an enigma. He lays it all out there: his fawning over the world’s authoritarians, his threats to abandon our allies, his contempt for the rule of law, his intention to use the federal government as an instrument of retribution . Journalists must be careful not to give in to what Brian Klaas has called the “ Banality of Crazy .” As I’ve written in the past, there have been so many outrages and so many assaults on decency that it’s easy to become numbed by the cascade of awfulness.

The former White House communications director Dan Pfeiffer points out a recent example in his newsletter: On a radio show earlier this month, Donald Trump bizarrely suggested that Joe Biden was high on cocaine when he delivered his energetic State of the Union address. It was a startling moment, yet several major national media outlets did not cover the story.

And when Trump called for the execution of General Mark Milley, it didn’t have nearly the explosive effect it should have. “I had expected every website and all the cable news shows to lead with a story about Trump demanding the execution of the highest military officer in the country,” this magazine’s editor in chief, Jeffrey Goldberg, told The Washington Post . “If Barack Obama or George W. Bush had done so, I’m sure [the news media] would have been all over it.” (Trump’s threats against Milley came after The Atlantic published a profile of Milley by Goldberg.)

In our digitally chaotic world, relying on the reporting strategies of the past is like bringing the rules of chess to the Thunderdome. There has, of course, been some progress. The major cable networks no longer carry Trump’s rallies live without context, but they still broadcast town-hall meetings and interviews with the former president, which boost ratings. NBC’s abortive decision to hire Ronna McDaniel, a former chair of the Republican National Committee, as a contributor, despite her role in spreading lies about the 2020 election, highlighted the disconnect between this moment and much of the national media.

And then there is the internet. It is certainly possible that richer, more insightful media will emerge from the digital revolution, but we’re obviously not there now. Back in 2016, we worried that social media had become a vector for disinformation and bigotry, but since then, we’ve seen Elon Musk’s extraordinary enshittification of X. In 2016, we worried (too late) about foreign interference and bots. In 2024, we are going to have to contend with deepfakes created by AI.

This year will see some of the best journalism of our lifetime. (You’ll find much of it here in The Atlantic .) But because both the media and their audiences are badly fractured, much of that reporting is siloed off from the voters who need it most. Because millions of Americans are locked in information bubbles, half of the country either won’t see important journalism about the dangers of a second Trump term or won’t believe it.

As Paul Farhi notes in The Atlantic , MAGA-friendly websites have experienced massive drops in traffic, but social media continues to thrive on negativity and providing dopamine hits of anger and fear. And of distraction—last week, the most-liked videos on TikTok about the presidential race included a video of a man singing to Biden and Trump’s visit to a Chick-fil-A .

To put it mildly, the arc of social media does not bend toward Edward R. Murrow–style journalism.

So what’s to be done? I don’t have any easy answers, because I don’t think they exist. Getting it right this time does not mean that journalists need to pull their punches in covering Biden or become slavish defenders of his administration’s policies. In fact, that would only make matters worse. But perhaps we could start with some modest proposals.

First, we should redefine newsworthy . Klaas argues that journalists need to emphasize the magnitude rather than simply the novelty of political events. Trump’s ongoing attacks on democracy may not be new, but they define the stakes of 2024. So although live coverage of Trump rallies without any accompanying analysis remains a spectacularly bad idea, it’s important to neither ignore nor mute the dark message that Trump delivers at every event. As a recent headline in The Guardian put it, “Trump’s Bizarre, Vindictive Incoherence Has to Be Heard in Full to Be Believed.”

Why not relentlessly emphasize the truth, and publish more fact-checked transcripts that highlight his wilder and more unhinged rants? (Emphasizing magnitude is, of course, a tremendous challenge for journalists when the amplification mechanisms of the modern web—that is, social-media algorithms—are set by companies that have proved to be hostile to the distribution of information from reputable news outlets.)

The media challenge will be to emphasize the abnormality of Donald Trump without succumbing to a reactionary ideological tribalism, which would simply drive audiences further into their silos. Put another way: Media outlets will need all the credibility they can muster when they try to sound the alarm that none of this is normal . And it is far more important to get it right than to get it fast, because every lapse will be weaponized.

The commitment to “fairness” should not, however, mean creating false equivalencies or fake balance. (An exaggerated report about Biden’s memory lapses , for example, should not be a bigger story than Trump’s invitation to Vladimir Putin to invade European countries .)

In the age of Trump, it is also important that members of the media not be distracted by theatrics generally. (This includes Trump’s trial drama, the party conventions, and even— as David Frum points out in The Atlantic —the debates.) Relatedly, the stakes are simply too high to wallow in vibes, memes, or an obsessive focus on within-the-margin-of-error polls. Democracy can indeed be crushed by authoritarianism. But it can also be suffocated by the sort of trivia that often dominates social media.

And, finally, the Prime Directive of 2024: Never, ever become numbed by the endless drumbeat of outrages.

• Political analysis needs more witchcraft.
• Right-wing media are in trouble.

Today’s News

• The Senate dismissed the articles of impeachment against Homeland Security Secretary Alejandro Mayorkas and ruled that they were unconstitutional, ending his trial before it got under way.
• House Speaker Mike Johnson will proceed with a plan, backed by President Joe Biden, to vote on separate bills to provide aid to Ukraine, Israel, and U.S. allies in the Indo-Pacific. The proposed move has raised criticism from some conservative representatives.
• Four Columbia University officials, including the president, Nemat Shafik, testified in a congressional committee hearing about student safety, free speech, and anti-Semitism on campus.
• The Trump Trials : The first days of the criminal case against Donald Trump have been mundane, even boring—and that’s remarkable, George T. Conway III writes.
• The Weekly Planet : The cocoa shortage could make chocolate more expensive forever, Yasmin Tayag writes.

Explore all of our newsletters here.

Evening Read

Something Weird Is Happening With Caesar Salads

By Ellen Cushing

On a November evening in Brooklyn, in 2023, I was in trouble (hungry). I ordered a kale Caesar at a place I like. Instead, I got: a tangle of kale, pickled red onion, and “sweet and spicy almonds,” dressed in a thinnish, vaguely savory liquid and topped with a glob of crème fraîche roughly the size and vibe of a golf ball. It was a pretty weird food. We are living through an age of unchecked Caesar-salad fraud. Putative Caesars are dressed with yogurt or miso or tequila or lemongrass; they are served with zucchini, orange zest, pig ear, kimchi, poached duck egg, roasted fennel, fried chickpeas, buffalo-cauliflower fritters, tōgarashi -dusted rice crackers. They are missing anchovies, or croutons, or even lettuce … Molly Baz is a chef, a cookbook author, and a bit of a Caesar obsessive—she owns a pair of sneakers with “CAE” on one tongue and “SAL” on the other—and she put it succinctly when she told me, “There’s been a lot of liberties taken, for better or for worse.”

Read the full article.

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Stephanie Bai contributed to this newsletter.

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Guest Essay

The Most Important Thing I Teach My Students Isn’t on the Syllabus

By Frank Bruni

Mr. Bruni is a contributing Opinion writer and the author of the forthcoming book “The Age of Grievance,” from which this essay is adapted.

I warn my students. At the start of every semester, on the first day of every course, I confess to certain passions and quirks and tell them to be ready: I’m a stickler for correct grammar, spelling and the like, so if they don’t have it in them to care about and patrol for such errors, they probably won’t end up with the grade they’re after. I want to hear everyone’s voice — I tell them that, too — but I don’t want to hear anybody’s voice so often and so loudly that the other voices don’t have a chance.

And I’m going to repeat one phrase more often than any other: “It’s complicated.” They’ll become familiar with that. They may even become bored with it. I’ll sometimes say it when we’re discussing the roots and branches of a social ill, the motivations of public (and private) actors and a whole lot else, and that’s because I’m standing before them not as an ambassador of certainty or a font of unassailable verities but as an emissary of doubt. I want to give them intelligent questions, not final answers. I want to teach them how much they have to learn — and how much they will always have to learn.

I’d been on the faculty of Duke University and delivering that spiel for more than two years before I realized that each component of it was about the same quality: humility. The grammar-and-spelling bit was about surrendering to an established and easily understood way of doing things that eschewed wild individualism in favor of a common mode of communication. It showed respect for tradition, which is a force that binds us, a folding of the self into a greater whole. The voices bit — well, that’s obvious. It’s a reminder that we share the stages of our communities, our countries, our worlds, with many other actors and should conduct ourselves in a manner that recognizes this fact. And “it’s complicated” is a bulwark against arrogance, absolutism, purity, zeal.

I’d also been delivering that spiel for more than two years before I realized that humility is the antidote to grievance.

We live in an era defined and overwhelmed by grievance — by too many Americans’ obsession with how they’ve been wronged and their insistence on wallowing in ire. This anger reflects a pessimism that previous generations didn’t feel. The ascent of identity politics and the influence of social media, it turned out, were better at inflaming us than uniting us. They promote a self-obsession at odds with community, civility, comity and compromise. It’s a problem of humility.

The Jan. 6 insurrectionists were delusional, frenzied, savage. But above all, they were unhumble. They decided that they held the truth, no matter all the evidence to the contrary. They couldn’t accept that their preference for one presidential candidate over another could possibly put them in the minority — or perhaps a few of them just reasoned that if it did, then everybody else was too misguided to matter. They elevated how they viewed the world and what they wanted over tradition, institutional stability, law, order.

It’s no accident that they were acting in the service of Donald Trump, whose pitch to Americans from the very start was a strikingly — even shockingly — unhumble one. “I alone can fix it,” he proclaimed in his 2016 speech accepting the Republican Party’s nomination for president; and at his inauguration in January of the following year, the word “humbled,” which had been present in the first inaugural remarks of both Barack Obama and George W. Bush, was nowhere to be found. Nor were any of its variants. That whole sentiment and politesse were missing, as they had been during a campaign centered on his supposed omniscience.

There are now mini-Trumps aplenty in American politics, but anti-Trumps will be our salvation, and I say that not along partisan or ideological lines. I’m talking about character and how a society holds itself together. It does that with concern for the common good, with respect for the institutions and procedures that protect that and with political leaders who ideally embody those traits or at least promote them.

Those leaders exist. When Charlie Baker, a former Massachusetts governor, was enjoying enormous favor and lofty approval ratings as a Republican in a predominantly Democratic state, he was also stressing the importance of humility. He was fond of quoting Philippians 2:3, which he invoked as a lodestar for his administration. “Do nothing out of selfish ambition or vain conceit,” it says. “Rather, in humility value others above yourself.”

That’s great practical advice for anyone in government, where most meaningful success hinges on teamwork and significant progress requires consensus. Governing, as opposed to demagoguery, is about earning others’ trust and cooperation. Exhibiting a willingness to listen to and to hear them goes a long way toward that.

“Insight and knowledge come from curiosity and humility,” Mr. Baker wrote in a 2022 book, “Results,” coauthored with his chief of staff, Steve Kadish, a Democrat. “Snap judgments — about people or ideas — are fueled by arrogance and conceit. They create blind spots and missed opportunities. Good ideas and interesting ways to accomplish goals in public life exist all over the place if you have the will, the curiosity, and the humility to find them.”

Humble politicians don’t insist on one-size-fits-all answers when those aren’t necessary as a matter of basic rights and fundamental justice. Humble activists don’t either. The campaign for same-sex marriage — one of the most successful social movements of recent decades — showed that progress can be made not by shaming people, not by telling them how awful they are, but by suggesting how much better they could be. Marriage-equality advocates emphasized a brighter future that they wanted to create, not an ugly past that they wanted to litigate. They also wisely assured Americans that gay and lesbian people weren’t trying to explode a cherished institution and upend a system of values, but instead wanted in.

“I don’t want to disparage shouting and demands — everything has its place,” Evan Wolfson, the founder of the pivotal advocacy group Freedom to Marry, told me when we revisited the movement’s philosophy and tactics. At times, he acknowledged, champions of a cause “need to break the silence, we need to push, we need to force.”

“But I used to say, ‘Yes, there’s demanding, but there’s also asking,’” he recalled. “And one is not the enemy of the other. People don’t like being accused, people don’t like being condemned, people don’t like being alienated. It’s a matter of conversation and persuasion.”

That’s consistent with the message delivered by Loretta Ross, a longtime racial justice and human rights advocate, through her teaching, public speaking and writing. Troubled by the frequent targeting and pillorying of people on social media, she urged the practice of calling in rather than calling out those who’ve upset you. “Call-outs make people fearful of being targeted,” she wrote in a guest essay for Times Opinion . “People avoid meaningful conversations when hypervigilant perfectionists point out apparent mistakes, feeding the cannibalistic maw of the cancel culture.” Instead, she advised, engage them. If you believe they need enlightenment, try that route, “without the self-indulgence of drama,” she wrote.

She was preaching humility.

She was also recognizing other people’s right to disagree — to live differently, to talk differently. Pluralism is as much about that as it is about a multiracial, multifaith, multigender splendor. That doesn’t mean a surrender or even a compromise of principles; a person can hold on to those while practicing tolerance, which has been supplanted by grievance. Tolerance shares DNA with respect. It recognizes that other people have rights and inherent value even when we disagree vehemently with them.

We all carry wounds, and some of us carry wounds much graver than others. We confront obstacles, including unjust and senseless ones. We must tend to those wounds. We must push hard at those obstacles. But we mustn’t treat every wound, every obstacle, as some cosmic outrage or mortal danger. We mustn’t lose sight of the struggle, imperfection and randomness of life. We mustn’t overstate our vulnerability and exaggerate our due.

While grievance blows our concerns out of proportion, humility puts them in perspective. While grievance reduces the people with whom we disagree to caricature, humility acknowledges that they’re every bit as complex as we are — with as much of a stake in creating a more perfect union.

The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips . And here’s our email: [email protected] .

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Frank Bruni is a professor of journalism and public policy at Duke University, the author of the book "The Age of Grievance" and a contributing Opinion writer. He writes a weekly email newsletter .   Instagram   Threads   @ FrankBruni • Facebook

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Le Corbusier’s triumphant return to Moscow

The exhibition of French prominent architect Le Corbusier, held in The Pushkin Museum, brings together the different facets of his talent. Source: ITAR-TASS / Stanislav Krasilnikov

The largest Le Corbusier exhibition in a quarter of a century celebrates the modernist architect’s life and his connection with the city.

Given his affinity with Moscow, it is perhaps surprising that the city had never hosted a major examination of Le Corbusier’s work until now. However, the Pushkin Museum and the Le Corbusier Fund have redressed that discrepancy with the comprehensive exhibition “Secrets of Creation: Between Art and Architecture,” which runs until November 18.

Presenting over 400 exhibits, the exhibition charts Le Corbusier’s development from the young man eagerly sketching buildings on a trip around Europe, to his later years as a prolific and influential architect.

The exhibition brings together the different facets of his talent, showing his publications, artwork and furniture design alongside photographs, models and blueprints of his buildings.

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Irina Antonova, director of the Pushkin Museum, said, “It was important for us to also exhibit his art. People know Le Corbusier the architect, but what is less well know is that he was also an artist. Seeing his art and architecture together gives us an insight into his mind and his thought-processes.”

What becomes obvious to visitors of the exhibition is that Le Corbusier was a man driven by a single-minded vision of how form and lines should interact, a vision he was able to express across multiple genres.

The upper wings of the Pushkin Museum are separated by the central stairs and two long balconies. The organizers have exploited this space, allowing comparison of Le Corbusier’s different art forms. On one side there are large paintings in the Purist style he adapted from Cubism, while on the other wall there are panoramic photographs of his famous buildings.

Le Corbusier was a theorist, producing many pamphlets and manifestos which outlined his view that rigorous urban planning could make society more productive and raise the average standard of living.

It was his affinity with constructivism, and its accompanying vision of the way architecture could shape society, which drew him to visit the Soviet Union, where, as he saw it, there existed a “nation that is being organized in accordance with its new spirit.”

The exhibition’s curator Jean-Louis Cohen explains that Le Corbusier saw Moscow as “somewhere he could experiment.” Indeed, when the architect was commissioned to construct the famous Tsentrosoyuz Building, he responded by producing a plan for the entire city, based on his concept of geometric symmetry.

Falling foul of the political climate

He had misread the Soviet appetite for experimentation, and as Cohen relates in his book Le Corbusier, 1887-1965, drew stinging attacks from the likes of El Lissitsky, who called his design “a city on paper, extraneous to living nature, located in a desert through which not even a river must be allowed to pass (since a curve would contradict the style).”

Not to be deterred, Le Corbusier returned to Moscow in 1932 and entered the famous Palace of the Soviets competition, a skyscraper that was planned to be the tallest building in the world.

This time he fell foul of the changing political climate, as Stalin’s growing suspicion of the avant-garde led to the endorsement of neo-classical designs for the construction, which was ultimately never built due to the Second World War.

Situated opposite the proposed site for the Palace of the Soviets, the exhibition offers a tantalizing vision of what might have been, presenting scale models alongside Le Corbusier’s plans, and generating the feeling of an un-built masterpiece.

Despite Le Corbusier’s fluctuating fortunes in Soviet society, there was one architect who never wavered in his support . Constructivist luminary Alexander Vesnin declared that the Tsentrosoyuz building was the "the best building to arise in Moscow for over a century.”

The exhibition sheds light on their professional and personal relationship, showing sketches and letters they exchanged. In a radical break from the abstract nature of most of Le Corbusier’s art, this corner of the exhibition highlights the sometimes volatile architect’s softer side, as shown through nude sketches and classical still-life paintings he sent to Vesnin.

“He was a complex person” says Cohen. “It’s important to show his difficult elements; his connections with the USSR, with Mussolini. Now that relations between Russia and the West have improved, we can examine this. At the moment there is a new season in Le Corbusier interpretation.” To this end, the exhibition includes articles that have never previously been published in Russia, as well as Le Corbusier’s own literature.

Completing Le Corbusier’s triumphant return to Russia is a preview of a forthcoming statue, to be erected outside the Tsentrosoyuz building. Even if she couldn’t quite accept his vision of a planned city, Moscow is certainly welcoming him back.

All rights reserved by Rossiyskaya Gazeta.

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