Judicialisation

Question 1

What is the judicialization of politics

Answer 1

The increasing use of the judiciary and judicial practices to address moral predicaments and political controversies
Can be used to veto laws
Can verify questions regarding health policy, disarmament stem cell research etc

Question 2

How is judicialization most commonly used

Answer 2

Laws are deemed unconstitutional

Question 3

What does judicialization require

Answer 3

Constitution supremacy

Judges involved in policy making rather than leaving it to politicians and administrators

Question 4

What did Arante’s say regarding judicialization in Brazil

Answer 4

The demand for the justice that was oppressed during authoritarianism flooded the judiciary after constraints ended
The new democracy required legitimate judges to decide conflicts between society and the government and between branches

Question 5

What factors led to judicialization in Brazil

Answer 5

Democratisation in 1985 and the creation of the constitution in 1988
Increasing interest groups demanding judicial solutions to conflicts
Opposition use the judiciary to fight government policies
Constitution delegates to the judiciary and public ministry the task of protecting individual rights and interests and collective and social rights

Question 6

What conditions facilitated judicialization in Brazil according to verbicaro

Answer 6

1988 constitution 
Universalisation of access to justice 
Interpretable constitution 
Expansion of space reserved for the Supreme Court 
Increase in size of the legislative 
Unstable parliament

Question 7

What policies have judges influenced in Brazil

Answer 7

Consumer defence code

Statute of the child and the adolescents

Question 8

How have judges helped lgbt rights in Brazil

Answer 8

2011 same sex marriage legalised - passed by 10-0 vote - a abstained due to earlier stated views
2018 ruled transgender people could change their legal gender without surgery, hormone replacement therapy or a medical diagnosis
2018 Removed a state law preventing gender and sexuality classes in school
2019 currently in proceedings to criminalise transphobia and homophobia

Question 9

What did Maues and Leitao say about judicialization

Answer 9

Laws and acts being deemed unconstitutional are not attempts to disrespect the rule of the majority but actions in defence of the constitution
Limits possible violations of the constitution

Question 10

What are the two biggest criticisms of judicial activism according to Chevallier

Answer 10

Anti majoritarian character of the judges - unelected and not legitimate to make new laws
Unestablished criteria regarding new laws made through court cases

Question 11

What arguments did Wolfe give in defence to judicial activism

Answer 11

Judges should decide cases not avoid them and use their power to expand justice and liberties
Not ignoring the constitution but interpreting it their own way which is necessary to make rulings

Question 12

Why did Whittington believe elected politicians tolerated an active judiciary

Answer 12

When they cannot implement their own agenda they foster an active constitutional review by a sympathetic judge to overcome the barriers and break through the status quo

Question 13

How did vianna criticise direct unconstitutional actions (ADI)

Answer 13

Used by governments as well as minorities
60% of ADIs proposed between 1988 and 2005 were about public administration issues and 12.6% were about tax policies
Among the ADI laws proposed by governors 87% against state laws
Shows state governors when unsuccessful in the political arena use the judiciary to guarantee their claim

Question 14

What are the disadvantages of judicialization for democracy

Answer 14

Judicial independence

• autonomy and separation of powers
• implications- cases in which the judiciary is both politicised and lacks independence and autonomy is detrimental to democracy

Question 15

How is Venezuela an example of the lack of judicial independence when considering judicialization

Answer 15

The autonomy and effectiveness of the judiciary as a check on the regime has been compromised
The government has purged yeh judiciary of judges it deems hostile to its aims while packing the Supreme Court with loyalist judges, making it a political instrument to support the regime
The judiciary has become a major impediment to democracy as it stifles opposition by arresting or banning leaders from the democratic process and even temporarily stripped the opposition controlled National Assembly of its legislative powers in 2017

Question 16

What are the advantages of the judicialization of politics for democracy

Answer 16

Safeguards citizens rights - important equalising mechanisms for rights for groups and individuals without access to political power or representation - especially important for new democracies after long authoritarian regimes
Transitional justice - increased accountability
Checks and balances- strong judiciary can investigate and try politicians- increases citizens ability to hold government to account

Question 17

How is Costa Rica an example of how judicialization can benefit democracy

Answer 17

Judicialization following the new constitutional courts creation in 1989 has allowed marginalised and persecuted groups to peruse legal changes through the judiciary
Makes the legal system accessible to individuals
Cases filed by HIV/AIDS sufferers led to guaranteed start funded treatment
2018 Supreme Court riling legalised same sex marriage

Question 18

What are general disadvantages of the judicialization of politics

Answer 18

Deterioration of public security- due process interfering with important policy measures leading to Inability to combat criminal networks and creating public support for draconian policies - rise of Bolsonaro
Judiciary doesn’t represent entire population
Politicises the judiciary and causes contention with their role as impartial arbiters of the rule of law and constitutional rights - increases scope for distrust which delegitimises due process

Question 19

Who stated that The demand for the justice that was oppressed during authoritarianism flooded the judiciary after constraints ended
The new democracy required legitimate judges to decide conflicts between society and the government and between branches

Answer 19

Arante

Question 20

Who said that Laws and acts being deemed unconstitutional are not attempts to disrespect the rule of the majority but actions in defence of the constitution
Limits possible violations of the constitution

Answer 20

Maues and leitao

Question 21

Who defend judicial activism

Answer 21

Wolfe

Question 22

Who spoke about politicians tolerating an active judiciary

Answer 22

Whittington

Question 23

Who criticised direct constitutional action

Answer 23

Vianna

Question 24

Who spoke about criticisms of judicial activism

Answer 24

Chevallier

Question 25

Who spoke about conditions facilitating the judicialization of politics in Brazil

Answer 25

Verbicaro