The study of courts has been a subject of major scholarship interest in recent years and Consequential Courts is a new, very fascinating addition to this literature, especially to the comparative study of courts, as judicial roles are examined in a “global perspective”. The book is divided into three broad sections, with contributions from very well-known and established scholars in the study of courts. The first section contains five chapters which analyse the expanding role of courts in new democracies such as South Africa or restored ones such as Chile. The second section, in seven chapters, analyses the expanding roles of courts in what the authors call “established democracies” such as Israel, Italy or the US. The final section provides four chapters that discuss issues that could be of importance to all of the jurisdictions. Many edited books sometimes lack a real guiding thread throughout the book but the authors attempt to avoid this pitfall by providing the reader with a very complete introductory chapter which lays out the theoretical substance that underpins the book and the themes that cut through the book.
Commencing the first group of chapters, Tom Ginsburg uses the example of four real cases in Asia to illustrate the role courts could play in democratisation, specifically whether an elected political leader could take office or continue in it. According to the author, courts are placed at a difficult crossroads in which they have to choose whether they will be agents of the past, policing a transition or even preserving policies of the authoritarian regime; agents of the future, helping transform the political process and encouraging the consolidation of democracy; the trigger of the democratisation process, encouraging mobilisation and tipping the regime into transformation; or mere marginal players.
Alexei Trochev starts the second chapter with an eye-catching phrase: “… judicial power moves in mysterious ways: strong courts sometimes fail to command the obedience of other political actors and weak courts sometimes compel rulers to obey adverse rulings” (p. 67). This chapter tells the story of three countries (Ukraine, Georgia, and Kyrgystan) in which their Supreme Courts did the latter; they took the side of protesters (and not of authoritarian leaders in office) and cancelled rigged elections, allowing a peaceful transition to democracy. It also explores the reasons why they were bold enough to do this, in opposition to autocratic governments. Four conditions are suggested: political fragmentation; elections which involve at least some real competition; constitutionally defined barriers against nondemocratic rule; and judicial jurisdiction in politically salient areas.
The Constitutional Court of South Africa is generally held in high esteem, as Heinz Klug rightly points out. In the third chapter, he claims that the role that the Court has played has not been static; it has played different roles throughout its brief history, from a facilitator in the democratic transition to prompting legislative action in recent years. In order better to understand the role of this Court, the author argues, three distinct sets of factors should be taken into account: the original conditions that enabled the Court to issue the rulings for which it became famous; the internal motivations or actions of the Court; and the external influences that encouraged the Court to adopt the stance it has taken.
The final two chapters of the first part analyse the consequential role of two Courts in Latin American countries. Druscilla Scribner considers the role of the Constitutional Court of Chile as a power distributor after democracy was re-established in 1990. The focus is the “law vs. decrees cases” decided by the Court until 2005. In these cases, the petitioners (from the legislature) typically charge that the executive has unconstitutionally encroached on the lawful authority of the legislature. As such, the Court is placed in a position in which it has to decide to give the justification (and thus the right to govern) to either the legislature or the executive. The chapter analyses the cases in which this has happened and the effects of those cases for the institutional role of the Constitutional Court. Mónica Castillejos-Aragón analyses the Mexican Supreme Court, considering why it transformed from a passive and unimportant institution to an important instrument of societal change. Most of the literature points to two main reasons for this transformation: the judicial reform of 1994 and the advent of a new competitive political party system in 2000. The author argues that these two traditional reasons are not sufficient to explain the transformation of the Court; she believes a third crucial reason is also responsible. Progressive internal leadership is proposed as the factor which converted the Court into an arena for political contestation.
The second group of chapters, which relate to “established democracies”, starts with an examination by Carlo Guarnieri of the expanding role of the Italian judiciary as a political actor, especially in the enforcement of political accountability. Guarnieri explains how the judiciary came to have such an important role, attributing this to a multiplicity of factors, including a new constitution in 1948, the increment of judicial and prosecutorial independence, growing political dissatisfaction, and increasing support of the media. In the following chapter, Nick Huls presents an overview of the role in politics of the Hoge Raad, the Dutch Court of Cassation. He argues that this has not been always ascending; its influence has had its ups and downs, either because of lack of internal leadership or because other public bodies have shouldered it aside. Guarnieri argues that a lesson that can be learned from the history of the Hoge Raad is that, in order to properly understand the role that courts have in governance, one must be attentive to the place of courts in the broader political landscape, to the important roles courts fail to play, as well as the effect that societal and political changes can have on judges' roles in governance.
The third chapter of the second part reviews what is generally seen as one of the most consequential Courts in history, the United States Supreme Court. Robert A. Kagan maintains that, even though the Court is not omnipotent, it is potent and provides examples of three areas in which it did produce or lead significant changes: the authorisation of the construction of a much larger national administrative state during the New Deal, the extension of the due process clause to state and local criminal justice systems, and the extension of civil rights and equal opportunity to African Americans in the 1950s and 1960s. The author also highlights that consequential judicial decisions can have unintended and often negative consequences, like the fierce political and social backlash that followed the Brown v Board of Education decision, which intensified white supremacist positions in politics and hence the violence of their resistance to civil rights activists.
The “constitutional revolution” led by the Supreme Court of Israel is the subject of Ammon Reichman's essay. This chapter gives a broad overview of the history of this “revolution”. It analyses the judicial moves that brought this change about, and hypothesises the forces that made the change possible. The author focuses on a series of variables that are deemed as relevant for the constitutional revolution: the relationships between the judiciary and the legal academy; the relative prestige bestowed by the media on Justices and the Supreme Court; the fragmentation of the political system; particular aspects of the country's economy; and the attitudes and leadership of the political and legal leaders.
Manoj Mate presents a very interesting essay on what he labels as “arguably one of the most powerful constitutional courts in the world” – the Supreme Court of India. This was not always the case, as, during the first two decades after independence, the Court had a limited role in governance. A strong shift in the Court's influence was triggered, Mate argues, by the development of Public Interest Litigation (PIL) following Indira Gandhi's emergency regime in 1975–77. Based on existing research, field research interviews, and analysis of judicial decisions, the chapter illustrates how the development of PIL was directly shaped by both institutional motives and the sincere policy values of senior justices of the Court.
Mitchel de S-O-l’ E. Lasser reviews the judicial dynamics between French and European Courts. He claims that many courts that previously did not have any role in judicial review are now in open competition to lead the development of fundamental rights jurisprudence. This chapter attempts to explain the causes of this situation, arguing that the advent of the European Court of Justice and the European Court of Human Rights has led to an intense inter-institutional competition between the Courts of France and the European High Courts. In this competition, fundamental rights have served both as the opportunity that triggered this competition and the preferred means to engage in it.
In the last chapter of the second part, Ran Hirschl analyses the role that Constitutional Courts have played in countries in which religion is not only a state religion but also is “a” or “the” source of legislation, such as Kuwait, Egypt, or Malaysia. He concludes that, in almost all these cases, despite dissimilarities in the formal recognition and commitment to religious values, the Constitutional Courts have assumed a “religion-taming role” (p. 313), and that the demand for the Courts' having this role can be found in moderate political leaders, state elites, secularist elements of civil society, and powerful economic stakeholders who share a deep resentment of radical religion.
The third and final group of chapters present what the authors call “four provocations” – essentially, issues that cut across all jurisdictions and that may need further research. Although all present interesting insights, two of them seem particularly relevant to understanding consequential Courts. Terence Halliday argues that, in order to better understand the political role Courts play, it is not sufficient to just look at them, but is necessary also to include in the analysis the role that lawyers and the rest of the legal occupations play (which he calls the “legal complex”). In the final chapter of the book, Martin Shapiro elegantly argues that, although there is an ever-increasing flow of data, there is still plenty of work to do in order to understand adequately what causes consequential behaviour by the Courts, and thus what has been branded the “mighty problem” of the study of Courts remains “mighty” (p. 397).
In the conclusions, the authors claim that their study, rather than focusing on causal factors of consequential decisions, approaches the issue from a different angle – focusing more on what judges are doing with their increasing power, on which domains of politics and aspects of policy they have a role in, and on what roles in governance politically consequential courts play (p. 399). This is a very innovative approach to understanding courts' behaviour and power, and the different country studies provide incredibly interesting empirical material. Nevertheless, since most chapters focus on different policy areas, the book is sometimes a little anecdotal in nature, and meaningful comparison is difficult. The book could have benefited from most studies focusing on only one area of law or “conflict arenas”, as this could have led to a more fruitful comparison of various jurisdictions. It would have been also interesting if all the contributors had focused on a given a set of factors, which the authors of the book could have theorised as relevant to explain consequential decisions, to explore in the different jurisdictions whether those have had an effect or not.
Consequential Courts constitutes a major contribution to the comparative study of courts. It provides abundant and detailed examples of politically consequential behaviour of many courts which are not always the object of academic research. It sets an agenda for future research in this area, and provides much food for thought on the methodological problems associated with large-scale comparative studies of Courts.
