Rethinking judicial empowerment: The new foundations of constitutional justice

• Autores: Daniel M. Brinks, Abby Blass
• Localización: International journal of constitutional law, ISSN 1474-2640, Vol. 15, Nº. 2, 2017, págs. 296-331
• Idioma: inglés
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• Dialnet Métricas: 9 Citas
• Resumen

  • Despite growing attention to the causes and consequences of judicial empowerment and the judicialization of politics, there is no consensus on the concept or the measure of formal judicial power. We present an original and comprehensive conceptual framework that includes three dimensions. The first is ex ante autonomy, which is concerned with pluralism in the process of appointing justices, and with the ability of a single outside actor to control appointments. The second is ex post autonomy, which measures the extent to which a single actor can shape and manipulate the incentives of sitting justices. The last is the court’s scope of authority, which evaluates the court’s ability to intervene decisively on a broad range of politically relevant issues, on behalf of a broad range of actors. We argue that high and low levels of autonomy and authority interact to produce qualitatively different models of constitutional justice, reflecting differences in the goals of political actors to design courts as mechanisms of governance. We apply the framework in the context of formal institutional changes to courts in Latin America over thirty-five years. The results reveal several important insights not captured by purely additive or one-dimensional measures of judicial empowerment. We show that designers increasingly prefer tradeoffs among dimensions rather than across-the-board increases in formal autonomy and authority, and discuss the implications of these results.