The Politico-Legal Dynamics of Judicial Review

Roux, Theunis

doi:10.1017/9781108340977

Cited by 44 publications

(4 citation statements)

References 200 publications

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“…Apart from Brazil, another important jurisdiction in which courts review constitutional amendments is India. Supporting our claim, Roux (2018) recently argued that thanks to the power of the judiciary the review constitutional amendments and examine their compatibility with the "basic structure of the constitution", "the court was free to intervene in any public policy issue that could plausibly be said to implicate the constitution's vision for a just society." 10 Comparing, again, to India, Roux (2018) claims that the Indian Supreme Court's "legitimacy is tied to popular satisfaction with the substantive outcomes of the cases it decides."…”

Section: Discussionmentioning

confidence: 83%

When backlashes and overrides do not scare: the power to review constitutional amendments and the case of Brazil's Supreme Court

Tommasini

Riccetto

Roznai

2021

IJHRCS

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This study deals with two of the most significant trends in global constitutionalism: the rising power of courts to review the 'constitutionality' of formal constitutional amendments, and political backlashes -as part of democratic erosion -aiming to curtail the court's authority. Focusing on Brazil's Supreme Court as our case study, we raise the hypothesis that the power to review constitutional amendments allows the justices to primarily decide cases according to their own policy preferences, rather than by searching for second-best solutions considering possible political overrides and backlashes. We argue, in sum, that the behaviour of justices might be altered by the power to review constitutional amendments, insofar as they have less to fear from political backlashes and overrides.

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Section: Discussionmentioning

confidence: 83%

When backlashes and overrides do not scare: the power to review constitutional amendments and the case of Brazil's Supreme Court

Tommasini

Riccetto

Roznai

2021

IJHRCS

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“…56 Recent corruption scandals in particular illustrate that no matter what institutional safeguards are in place, courts in the region remain deeply enmeshed in clientelist-political structures, including informal practices of obligation and loyalty that might affect the work behaviour of justices on even the highest courts. 57 These factors, while often hard to grasp empirically, deserve more scholarly attention, 58 and certainly need to become part of a broader empirical research agenda on courts throughout the Global South. 59 The Constitutional Court of the Republic of Indonesia surely deserves continuing attention.…”

Section: Discussionmentioning

confidence: 99%

Megapolitical Cases before the Constitutional Court of Indonesia since 2004: An Empirical Study

Dressel¹,

Inoue²

2018

CONSREV

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The Constitutional Court of Indonesia is considered one of Asia’s most activist courts. Here we investigate empirically possible determinants of the decisions of its judges over the period 2003–18. The findings are based on a unique data set of 80 high-profile political cases, complemented by data on the socio-biographic profiles of 26 judges who served during that period. Testing for common perceptions of the Constitutional Court since its inception, we first describe patterns in judicial decision-making across time and court composition before testing specifically for the impact of the judges’ professional backgrounds, presidential administrations, the influence of the Chief Justice, and cohort behaviour. The analysis finds declining dissent among justices on the bench over time and also provides evidence of strategic behaviour of justices at the ending of their own terms. But there is little statistical evidence that judicial behaviour has been affected by work background (except for those coming from the executive branch), appointment track or generation – hence suggesting that justices seem to retain more independence than the public seems to perceive. We then discuss the results in the context of Indonesia’s evolving constitutional democracy and look at the implications for comparative studies of judicial behaviour.

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“…For roughly 13 of those 70 years, between 1977 and 1989, constitutionalism was arguably a vehicle for greater political inclusion and social transformation in India. 49 During this period, the Supreme Court developed its 'public interest litigation' (PIL) jurisprudence, which became a means through which marginalized groups could petition the state for greater democratic attention and resources. The distortion of PIL that Anuj Bhuwania, one of Loughlin's secondary sources, describes, 50 came later, and for many commentators represents a betrayal of the Indian Constitution's transformative potential rather than a necessary consequence of the model that was adopted.…”

Section: Is the Approach Loughlin Adopts Appropriate To The Nature Of...mentioning

confidence: 99%

Constitutionalism beyond compare: Martin Loughlin’s inadvertent case for comparative constitutional studies

Roux

2023

Comparative Constitutional Studies

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This review essay considers two objections to which Martin Loughlin’s jeremiad Against Constitutionalism might appear to be vulnerable: first, that his argument is entirely stipulative in the sense that all the work is done by a non-standard definition of his central concept and, second that, even if this is not the case, he has not done enough to substantiate his claims about constitutionalism’s deleterious effects. The answer given is that the first objection largely fails but that the second succeeds. Loughlin’s definition of ‘constitutionalism’ as the ideology that has arisen in support of the global spread of written constitutions on the American model is thus somewhat non-standard. In its ordinary usage, ‘constitutionalism’ is a polysemic concept that expresses an aspirational ideal that is deliberately underspecified and contested. There is no uniform ideology of constitutionalism, but a wide variety of national traditions. Nevertheless, Loughlin’s account does capture certain common features of the legitimating claims made by written constitutions on the American model and his argument is to that extent not entirely stipulative. To enlist us in his project of opposing constitutionalism, however, Loughlin needed to conduct a much more thorough assessment of the deleterious effects he alleges have accompanied the spread of constitutionalism. The post-war adaptations of the American model in Germany, India and South Africa departed from it in significant ways. Not all the problems associated with the American model can be attributed to them and, conversely, not all the problems constitutionalism is encountering in these three countries can be attributed to the American model. In ignoring these differences, Loughlin’s argument too often relies on uninterrogated normative priors and unsubstantiated causal claims. His book in that sense makes an elegant, unintended case for the need for comparative constitutional studies as a field.

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The Politico-Legal Dynamics of Judicial Review

Cited by 44 publications

References 200 publications

When backlashes and overrides do not scare: the power to review constitutional amendments and the case of Brazil's Supreme Court

When backlashes and overrides do not scare: the power to review constitutional amendments and the case of Brazil's Supreme Court

Megapolitical Cases before the Constitutional Court of Indonesia since 2004: An Empirical Study

Constitutionalism beyond compare: Martin Loughlin’s inadvertent case for comparative constitutional studies

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