The Judicialization of Mega-Politics and the Rise of Political Courts

Abstract

In recent years, the judicialization of politics worldwide has expanded its scope to encompass what we may term "mega-politics"-matters of outright and utmost political significance that often define and divide whole polities. In this article, I explore the scope and nature of judicialization of this kind. I begin by identifying the characteristics of the judicialization of mega-politics and by surveying the main explanations for its emergence. I then illustrate the various forms and manifestations of the judicialization of mega-politics through recent examples drawn from jurisprudence of courts and tribunals worldwide. Next, I explore recent studies that advance a strategic "judicialization-from-above" account, which emphasizes support from the political sphere as a necessary precondition for judicialization of pure politics. To further illustrate this point, I survey patterns of political reaction to recurrent manifestations of unsolicited judicial intervention in the political sphere in general, and unwelcome judgments concerning contentious political issues in particular.

Keywords: Comparative constitutional law and politics, judicialization of politics, law of democracy, constitutional theory