Articles for category: Constitutional Courts and Populism

Populist Constitutionalism

Populist engagement with constitution-making and constitutional reform forms a distinctive, and in significant ways worrying, tendency. Populism is explicitly present in the constitutional politics of the East-Central European countries of Hungary and Poland (but not reducible to East-Central Europe), and is causing important tensions in the European Union, which proclaims to be grounded in the values of democracy, the rule of law, and fundamental rights. Concern about the populist-constitutional phenomenon has stimulated lively debates on democratic backsliding and illiberal democracy in Europe as well as on the supranational monitoring of democracy.((See C. Closa and D. Kochenov (2016) (eds), Reinforcing the ... continue reading

4. Mai 2017

Judges Speaking for the People: Judicial Populism beyond Judicial Decisions

We typically think of courts as victims or targets of populist politics, however we define the latter. Staffed by elites appointed by previous governments, high courts are indeed obvious targets for populist leaders on the rise. To preserve their authority against such threats, courts might adjust their decisions to trends in public opinion, or perhaps “go public” and speak out to the people, adopting public relations strategies to make it harder for politicians to ignore or retaliate against their decisions.((See e.g.,Bassok, Or. „The Supreme Court at the Bar of Public Opinion Polls.“ Constellations 23, no. 4 (2016): 573-584; Staton, Jeffrey K. Judicial power ... continue reading

4. Mai 2017

Working Well Is The Best Strategy: Judges under Populism

Introduction: foes of all stripes Let’s start with this truism—no administration, populist or not, wants courts meddling with them and checking on their power. Administrations often react to what they see as hostile decisions made by courts. These reactions may take a form that is congenial with political deliberation—courts in a democracy need to be scrutinized and criticized—but sometimes reach beyond, particularly in contexts of relatively weak institutions. Within these contexts, it is anything but rare to observe an administration, even a non-populist one, trying to curb judicial institutions, particularly as the latter become more “aggressive” in its decisions against ... continue reading

3. Mai 2017

In Defense of Judicial Populism: Lessons from Colombia

In 2005, the Colombian Constitutional Court upheld an amendment allowing presidential reelection. An extremely popular President elected for the 2002-2006 period, Álvaro Uribe, was behind the reform. The Court’s decision was highly controversial because one of the goals of the 1991 Constitution was to check the powers held by the Colombian President since 1886. For some, the Court’s decision was a concession to a populist authoritarian President that had dangerously concentrated power in his hands.((For a summary of the arguments opposing the constitutional reform see: Juan Sebastián Jiménez Herrera, ‘La reelección de Uribe fue inconstitucional e illegal’ in: El Espectador, ... continue reading

3. Mai 2017

Populism and the Turkish Constitutional Court: the Game Broker, the Populist and the Popular

Populist strategies have for some time been an integral part of Turkish political life employed dominantly by the right wing political parties.((For populism as a discursive strategy in Turkey see Zafer Toprak, “Populism ve Türkiye’deki Boyutları”, Tarih ve Demokrasi (Istanbul: Cem Yayınevi, 1992), pp. 41-62; Reşat Kasaba, “Populism and Democracy in Turkey, 1946-1961”, Rules and Rights in the Middle East, edited by E. Goldberg et. al. (Seattle: University of Washington Press, 1993), pp. 43-68; Erdoğan, Necmi, and Tanıl Bora, “‘Biz, Anadolu’nun Bağrı Yanık Çocukları … ’: Muhafazakar Popülizm”, Modern Türkiye’de Siyasi Düşünce, Cilt 5, Muhazafakarlık, edited by Tanıl Bora, and Murat Gültekingil, (İstanbul: İletişim Yayınları, 2006), pp. 632–644. For Turkey’s rightist parties ... continue reading

2. Mai 2017

,

Populism and Judicial Backlash in the United States and Europe

Common criticisms of judicial activism stretch from the somewhat outdated but nonetheless repeatedly re-emerging argument of courts’ “counter-majoritarian difficulty”((Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16 (1962).)) to the prevalence of disagreement in plural societies concerning the substance and scope of human rights.(( Richard Bellamy, “Rights as Democracy”, Critical Review of Social and Political Philosophy, 15: 4, (2012).)) Beyond conceptual attacks, however, it is increasingly common to find politicians across the Atlantic who attack courts for decisions with which they simply disagree. Especially the recent resurgence of right wing populism in the ... continue reading

30. April 2017

Safeguarding Democratic Institutions

A discussion of courts and populism begs for definitional boundaries.  While courts are generally institutionally confined, the same cannot be said for populism, a political moniker that risks confounding everything from the majoritarian core of democracy to the demagogic claims of tyrants in the making. As difficult as precise definition might be, it is clear that there is a shift in democratic politics.  The post-WW II political parties of Western Europe are in serious disrepair and the political tones in the Netherlands, France, Italy, Denmark, and other nations, are being defined by a politics of anger surging on the left ... continue reading

29. April 2017

Trapped in the Age of Trump: the American Supreme Court and 21st Century Populism

The American Supreme Court is currently ill-equipped to confront populism. The Court’s deficiency is not because of the political balance between justices nominated by Republican Presidents and those nominated by Democrat Presidents. It is a result of a deeper shift in the way the concept of judicial legitimacy is currently understood in the US. In this post I will briefly present this shift that I analyzed in length in a series of articles. The introduction of public opinion polling that measured public support for the Court meant that for the first time in American history, the elected representatives lost their ... continue reading

28. April 2017

Courts in a Populist World

“I did not come to in order to be loved but in order to voice the sentiments of the public,” said Minister Miri Regev. Meanwhile, an Opposition Member of Knesset exclaimed that “we are here because we reflect and represent the people.”((Haim Jelin, Yesh Atid (party), Knesset Session/Sitting (3 August 2016) (our translation; emphasis added).)) These statements are emblematic of the rise of populist politics. The populist rhetoric exhibited by Israeli politicians signals a new development in Israeli politics. I call this development public sentiment mirroring (or “mirroring” for short). Mirroring requires the state to replicate in its policies the ... continue reading

27. April 2017

Populist Constitutionalism and the Democratic Minimum Core

Democratic “populism” is on the rise worldwide. In the last decade, Latin America has seen a wave of populist, neo-Bolivarian political change; Hungary and Poland have seen the election of nationalist parties openly opposed to the European project; and a majority of voters in the UK have voted for Brexit.  In the US, for the first time since 1953, a candidate with no prior political experience has been elected President, and the Tea Party has continued to make inroads in controlling the Republican Party.  If recent trends continue, in countries such as France, there is also likely more change of ... continue reading

26. April 2017