Resituating the Judicialization of Politics: Bush V. Gore as a Global Trend

Abstract

Constitutional scholars, legal practitioners, and political activists critical of the U.S. Supreme Court's crucial role in determining the outcome of the 2000 presidential election, regard the Bush v. Gore saga as the most glaring example of the judicialization of politics in the United States. A close comparative look at recent constitutional politics in numerous other countries throughout the new constitutionalism world suggests, however, that while the specific details of the courtroom struggle over the fate of the American presidency made it unique, it was anything but an idiosyncratic moment in the recent history of comparative constitutional politics. Rather, it would be more accurate to consider the election judgment as symptomatic of a global trend whereby some of the most pertinent and polemical political controversies a democratic polity can contemplate are transferred from the political sphere to the courts.

Specifically, high court interventions and the corresponding judicialization of politics throughout the world of new constitutionalism have recently expanded to include at least four new areas: (a) core executive prerogatives (for example, national security matters and macroeconomic policymaking); (b) foundational "nation-building" processes and formative collective identity questions; (c) fundamental restorative justice dilemmas; and (d) political transformation, regime change, and electoral disputes. Bush v. Gore - a quintessential example of judicialized politics - illustrates merely a subcategory of one of four emerging areas of judicialization of "mega" politics worldwide. These emerging areas of judicial intervention expand the boundaries of national high court involvement in the political sphere, and take the judicialization of politics to a point that far exceeds any previous limit. It is precisely these groundbreaking, yet not commonly acknowledged scenarios of judicial intervention in the political sphere that make the judicialization of politics one of the most significant phenomena of contemporary governance.

In the first part of the essay the author discusses the distinct characteristics of each of these scenarios through detailed analysis of numerous illustrative cases drawn from recent constitutional jurisprudence issued by courts throughout the new constitutionalism world. In the second section the author suggests that the ever-accelerating reliance on courts and adjudicative means for articulating and dealing with highly contentious political controversies poses an array of new challenges to canonical grand constitutional theory. The global expansion of judicial power also brings into serious question the degree of parochialism that has long characterized the study of public law and judicial politics.