How do courts use judicial strategy to strengthen their institutional position? Through strategic assertions of power, a court may lay the groundwork for establishing its authority vis-à-vis the other branches of government. These strategies are aimed at affirming and enhancing judicial power, particular in fragile constitutional democracies. This article analyses strategic judicial empowerment from a global perspective, drawing on examples from apex courts in East Asia, South Asia, Southeast Asia, the U.K., and Europe.
When political crises morph into legal disputes, courts often tread lightly, fearing the results if powerful political interests align against them. Yet these moments of political crisis can also provide a court with opportunities to reaffirm or enhance its role in the constitutional system. When presented with the Miller I litigation following the 2016 referendum on Brexit, the U.K. Supreme Court was handed “a political bombshell.” Would the case harm or enhance the Court’s legitimacy? Miller I seemed to go well for the Court. In 2018, Lady Hale, the then President, described her court as looking “more and more like a constitutional court,” and suggested that Parliament Square be renamed “Constitution Square.” The Court’s 2019 decision in Miller II, however, has resulted in threats of jurisdiction stripping and the Johnson Government’s promise to “take back control.” This paper will assess Miller I & II in comparative perspective to shed light on the Court’s choices.
This article analyses three main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and non-believers that courts can save democracy; and the tension between strategic and legal considerations that courts consider when facing pressure from political branches. At its core, the article argues that courts have an important role in protecting democracy against constitutional reforms eroding the constitutional order, and that courts should stand firm against pressure and do their best to protect democracy.
We develop a typology of four functions that courts may perform under a broad read of Ely: protecting fragile democracies against erosion, improving the performance of democratic institutions, protecting discrete and insular minorities, and protecting against majoritarian political failures. The broad theory, we argue, is a useful conception of judicial role, although it faces various difficulties, including how to define the limits of judicial review, and how to prioritize some aspects of the role (such as those compelled by the narrow read of Ely) over others. Nonetheless, we argue that the broad read of Ely often asks the right kinds of questions of both courts and scholars.