Strategic Judicial Empowerment
American Journal of Comparative Law (Forthcoming)
85 Pages Posted: 18 Nov 2021
Date Written: October 10, 2021
When courts seek to strengthen their own institutional power, they often need to be strategic. In many fraught political contexts, judiciaries lack a history of asserting authority against powerful political actors. How can courts with fragile authority establish and enhance judicial power? This Article explores the phenomenon of strategic judicial empowerment, offering an account of how and when courts deploy various strategies aimed at enhancing their institutional position vis-à-vis other branches of government. Drawing on recent examples from apex courts in Pakistan, Malawi, Malaysia, and the United Kingdom, it explores the ways in which judges use tools of statecraft to increase the effectiveness of their decisions and enhance their role in the constitutional order.
The Article explores the particular strategies that courts might employ in service of self-empowerment: first, a strategy of maxi-minimalism features Marbury-style maximalist reasoning that expands judicial power while issuing a narrow ruling to avoid political backlash; second, an inverse strategy of mini-maximalism involves formalistic, orthodox doctrine that downplays the expansion of judicial power, even as a court delivers a decision of immediate consequence; third, a strategy of coalition-building that aids a judiciary in seeking allies in other institutional stakeholders; fourth, a rhetorical strategy that courts may use to craft a constitutional narrative of public salience; and fifth, a unanimous, single-voice decision that provides the optics of a unified judicial front. This Article also assesses the conditions that tend to give rise to instances of judicial self-empowerment. Courts in diverse contexts tend to assert themselves, for example, when their own institutional turf is threatened, during moments of political or constitutional crisis, when judges can capitalize on popular support for the outcome of a ruling, and under an influential judicial leader mindful of establishing a legacy.
Keywords: judicial power, judicial strategy, judicial empowerment, courts, Pakistan, Malaysia, Malawi, United Kingdom
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