Limited “Spheres” vs. Limited “Capacities”: Judicial Institutional Identity in Emergency and Security Cases

What is the institutional role of judges in deciding emergency and security cases? In this paper I distinguish between two types of claims made by judges about their limited role on such matters. One is a classic separation of powers account that justifies deference to government by demarcating “spheres” for judicial, executive and legislative supremacy. This type of argument often masks both an expansion and an abdication of judicial jurisdiction. The second approach envisions a more democratic institutional landscape – a shared and open terrain of “limited capacity”. Here judges see themselves as limited not because they are spatially confined but because the constitutional system operates in such cases under the general assumption of uncertainty. When judges operate under such assumption, I claim, they may acknowledge and support the creation of more democratically diverse institutional tools to ensure both accountability and efficiency in responding to security threats.