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11/07/2017

Stephen Gardbaum: What Makes for More or Less Powerful Constitutional Courts?
Michael Ramsey

Stephen Gardbaum (University of California, Los Angeles - School of Law) has posted What Makes for More or Less Powerful Constitutional Courts? on SSRN.  Here is the abstract:

It is sometimes suggested that one or other constitutional or supreme court -- for example, the Indian, U.S. or German -- is the "most powerful" in the world. And yet it is far from clear (a) what such power or "strength" of courts consists in; i.e., what measure, metric, criterion, conception, test, or indicia of power/strength is (usually implicitly) employed, (b) what the components of judicial power are under the given measure, and (c) what explains why some courts are more powerful than others. Is strength exclusively or mostly a function of formal legal powers, so that, for example, a court with the authority to invalidate a constitutional amendment on substantive grounds is ipso facto more powerful than one that may only invalidate statutes, which in turn is more powerful than a court that can do neither? Yet, both the U.S. and Japanese supreme courts are in this middle category, indeed have roughly similar sets of legal powers overall, but while the former is often considered among the most powerful courts in the world, the latter is often considered among the weakest. So it seems clear that formal powers do not tell the whole story, but what part do they play, if any, and what else helps to fill in the picture? Although looking to how courts actually use their legal powers is obviously also relevant, it too falls short of fully completing the picture. For what we are additionally in search of are factors that help to explain why, for example, the U.S. and Japanese courts use their powers in such different ways. 

This article seeks to shed light on all three parts of the uncertainty surrounding claims as to the strength or weakness of constitutional courts: the measure, components, and explanation of judicial power. It begins by arguing that the proper measure of the power of a constitutional court is its consequential nature as an institutional actor in terms of affecting the outcomes of important constitutional and political disputes. Although more diffuse and harder to quantify, this conception of judicial power is more inclusive and realistically nuanced than commonly employed uni-dimensional alternatives such as international influence or strike-down rate. The article then suggests that the consequential nature of a constitutional court is a function of three broad categories or types of variable: (1) formal legal rules and powers, (2) legal and judicial practice, and (3) the specific or immediate electoral and political context in which it operates. Through a process of mutual interaction, each of these three helps to shape and constitute the more specific components of a court's institutional power, which include the nature, scope, and content of the constitution it enforces, the jurisdictional and remedial powers it has and employs, the ease or difficulty of constitutional amendment, and its composition and tenure. Moving from measuring to explaining the strength or weakness of constitutional courts, the article next identifies and discusses three explanatory variables: (1) deliberate constitutional design choices, (2) legal culture, and (3) general or structural political context. The article concludes with case studies of the supreme courts of India and Japan that illustrate the role and interaction of these multidimensional evidentiary and explanatory factors.