Judiciaries

Question 1

what is the judiciary?

Answer 1

third branch of government

system of courts that interprets & applies the law in the name of the state

Question 2

what is the role of the judiciary?

Answer 2

interpret & apply the law in the name of the state

• does not make the law (legislature’s responsibility) or enforce the law (executive’s responsibility)

Question 3

what are the three models of judicial decision-making?

Answer 3

attitudinal model, strategic model, legal orthodox model

Question 4

what are judges decisions a function of according to Gibson, 2008?

Answer 4

“judges decisions are a function of what they prefer to do, tempered by what they ought to do, but constrained by what they perceive is feasible to do” (Gibson, 2008)

Question 5

what is the attitudinal model of judicial decision-making?

Answer 5

‘judges do what they want’

judicial decisions primarily driven by personal attitudes, ideologies & values of judges

• decisions reflect their own policy preferences, political beliefs & worldviews

derived from legal realism & political jurisprudence

Segal & Spaeth (2002) puts judges on a spectrum as political actors based on what they believe their views to be (published works prior to being on the bench)

Question 6

what is a real-life example demonstrating the attitudinal model of judicial decision-making

Answer 6

Roe vs Wade (1973)

• SC decision legalising abortion in US
• justices’ ideological positions on issues related to reproductive rights, privacy & constitutional interpretation strongly influenced their decisions
• justices with more liberal attitudes tended to support the right to abortion, while those with conservative attitudes tended to oppose it

Question 7

what are some criticisms of the attitudinal model?

Answer 7

In some respects, the AM is not a general model of judicial decision-making; instead, it is closely tailored to the circumstances of the United States Supreme Court (Gibson, 2008)

relies heavily on the ability to measure the attitudes of judges apart from their decisions (Gibson, 2008)

often challenged by those who assert that judges are frequently strongly constrained by stare decisis & precedent (Gibson, 2008)

Question 8

what is the strategic model of judicial decision-making?

Answer 8

‘judges do what they can’ (North & Weingast, 1989)

judges strategically make decisions to maximise their influence & achieve their goals within the judicial system

suggests judges may sometimes make decisions that deviate from their personal preferences if doing so serves their broader strategic objectives

Question 9

what is a real-life example that demonstrates the strategic model?

Answer 9

NFIB vs Sebelius (2012)

• Affordable Care Act (ACA) or Obamacare Case
• SC upheld individual mandate provision of the ACA as a valid excuse of Congress’s taxing power
• Chief Justice John Roberts, often considered conservative-leaning justice, joined liberal justices majority
• some argue that Roberts’ decision to uphold the ACA was a strategic move to protect legitimacy of the Court & preserve its institutional reputation, particularly given highly politicised nature of the case & public scrutiny surrounding it

Question 10

what is the legal orthodox model of judicial decision-making?

Answer 10

‘judges do as they ought’ (Levi, 1948)

emphasises importance of legal rules, principles & precedent in judicial decision-making

judges expected to interpret & apply the law objectively & impartially, without regard to personal preferences or external influences

judicial decisions seen as product of logical reasoning & application of established legal principles to the facts of the case

Question 11

what is a real-life case demonstrating the legal orthodox model?

Answer 11

HS2 case (2014)

• HS2 Action Alliance challenged legality of decision-making process behind HS2 railway project, particularly government’s approach to environmental impact assessments & consultation procedures
• SC’s decision primarily focused on legal questions regarding compliance with statutory procedures, administrative law principles & adequacy of environmental assessments

Question 12

does the unelected nature of judiciary affect their democratic quality?

Answer 12

although not directly elected, judges still have a solid democratic foundation, because they require public support & legitimacy just as any other branch of democratic government

Question 13

where do judiciaries gain their legitimacy?

Answer 13

justification

• judges differ from legislators in that they have to give reasons for their decisions
• therefore, the law has to be integrated into their decision process
• they are also more personally accountable due to the size of courts in relation to legislatures

unelected nature

• if they were elected, they would be part of a party system & certain political preferences would have greater influence

impeachment possibility

• judges can be impeached, so have an incentive to act properly

Question 14

define judicialisation according to Vallinder (1995).

Answer 14

judicialisation of politics should usually mean either: (Vallinder, 1995)

1. the expansion of the province of courts or the judges at the expense of politicians/ administrators – transfer of decision making rights from legislature, cabinet, civil service to the courts; OR
2. the spread of judicial decision-making methods outside the judicial province proper

Question 15

what two related processes are involved in the judicialisation of politics according to Vallinder, 1995?

Answer 15

1. the expansion of the province of courts or the judges at the expense of politicians / administrators - transfer of decision making rights from legislature, cabinet, civil service to the courts
2. the spread of judicial decision-making methods outside the judicial province proper

• inc. spread of legal discourse, jargon, rules & procedures

Question 16

how widespread is the judicialisation of politics?

Answer 16

arguably one of the most significant phenomena of late 20th & early 21st century governments (Hirschl, 2008)

just as evident in younger constitutional democracies that have established active judicial review mechanisms only in the last few decades as it is in US (Hirschl, 2008)

Question 17

give some examples that demonstrate the widespread nature of the judicialisation of politics.

Answer 17

Hirschl, 2008:

• American presidential election of 2000
• 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
• the secular nature of Turkey’s political system
• Israel’s fundamental definition as a “Jewish and Democratic State”

Question 18

who said, “nothing falls beyond the purview of judicial review, the world is filled with law; anything and everything is justiciable”?

Answer 18

Aharon Barak, the former Chief Justice of the Supreme Court of Israel

Question 19

what did Aharon Barak say of the widespread judicialisation of politics?

Answer 19

“nothing falls beyond the purview of judicial review; the world is filled with law; anything and everything is justiciable” (Aharon Barak, the former Chief Justice of the Supreme Court of Israel)

Question 20

is there a singular cause for judicialisation?

Answer 20

similar to other large-scale transformations, the judicialisation of politics is not derivative of one single cause

instead, a combination of institutional, societal & political factors encourage this & are necessary to create & sustain it

its establishment cannot be understood separately from the concrete social, political, & economic struggles that shape a given political system

Question 21

what are the causes of judicialisation?

Answer 21

political fragmentation ; democratisation (inc. politics of rights, cultural & political norms, confidence, institutional factors