Abusive Judicial Review: Courts Against Democracy

75 Pages Posted: 16 Jul 2019 Last revised: 6 Apr 2020

See all articles by David Landau

David Landau

Florida State University - College of Law

Rosalind Dixon

University of New South Wales (UNSW) - Faculty of Law

Date Written: April 1, 2019

Abstract

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

Suggested Citation

Landau, David and Dixon, Rosalind, Abusive Judicial Review: Courts Against Democracy (April 1, 2019). 53 UC Davis Law Review 1313 (2020), FSU College of Law, Public Law Research Paper No. 907, Available at SSRN: https://ssrn.com/abstract=3366602

David Landau (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

Rosalind Dixon

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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