Abusive Judicial Review: Courts Against Democracy
75 Pages Posted: 16 Jul 2019 Last revised: 6 Apr 2020
Date Written: April 1, 2019
Both in the United States and around the world, courts are generally conceptualized as the last line of defense for the liberal democratic constitutional order. But this Article shows that it is not uncommon for judges to issue decisions that intentionally attack the core of electoral democracy. Courts around the world, for example, have legitimated antidemocratic laws and practices, banned opposition parties to constrict the electoral sphere, eliminated presidential term limits, and repressed opposition-held legislatures. We call this practice abusive judicial review. Would-be authoritarians at times seek to capture courts and deploy them in abusive ways as part of a broader project of democratic erosion, because courts often enjoy legitimacy advantages that make their antidemocratic moves harder to detect and respond to both domestically and internationally. This paper gives examples of abusive judicial review from around the world, explores potential responses both in domestic constitutional design and international law, and asks whether abusive
judicial review is a potential threat in the United States.
Keywords: democratic erosion, abusive constitutionalism, judicial review, judicial independence
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