Vol. 6, No. 1 (January, 1996) pp. 1-5

THE GLOBAL EXPANSION OF JUDICIAL POWER by C. Neal Tate and Torbjorn Vallinder (Editors). New York: New York University Press, 1995. 556 pp. Cloth $45.00.

Reviewed by William M. Reisinger, Department of Political Science, University of Iowa.

This long volume is full of fascinating material on many aspects of the intersection of politics and law. The topics addressed in the various chapters include: patterns of litigation; courts' ability to demand cabinet documents; executive-judicial relations in policy areas such as immigration appeals; patterns of judicial review; judicial training and salaries; the role of prosecutors; as well as the role of different countries' judiciary under different views of democracy. The contributions achieve a laudable consistency of quality and readability. Moreover, the volume lives up to the word global in the title by including chapters that focus on issues within a total of 14 countries. (To judge from the places of employment, the authors hail from over a dozen countries.) So, for those with a comparative bent, this volume is a real asset for the insights it provides into the configurations and interplay of judicial and other institutions in 14 diverse societies.

The editors are to be praised for bringing together these valuable essays. The volume belongs on the shelves of a wide range of libraries and of scholars specializing in most aspects of comparative law or politics. It could be usefully assigned in a variety of undergraduate as well as graduate courses. (The price of the hardbound is quite reasonable given its length, but a paperback edition would facilitate its assignment as a text.)

I believe, however, that the title of the volume, and the effort by the editors to link the rich variety of topics into one concept -- "the global expansion of judicial power," -- place something of a straitjacket on the volume's contents. To better depict the breadth of material contained in the volume would require a title less elegant, such as "The Global Importance of the Judiciary's Relations with Other Political Institutions." For those like me who believe that this latter topic deserves much more attention in the academy, this collection marks a step forward. The volume is designed, however, not just to be a collection of essays under a common rubric but to demonstrate the existence of and analyze the volume's actual title -- a trend that the editors find highly significant. Yet I remain unconvinced that the various phenomena studied should all be treated as if they fit into a single concept or that all the phenomena are indeed growing in frequency.

The first phenomenon toward which Tate and Vallinder direct our attention (p. 2) is the post-war trend for new democracies to be established with a strong judicial wing. This certainly qualifies as a global expansion of judicial power, in a geographic sense of the word expansion. Geographic expansion, however, is not part of the definition that Vallinder provides for the volume. In Tate's restatement of this definition: [T]he judicialization of politics . . . suggests two core meanings for the term:
1. the process by which courts and judges come to make or increasingly to dominate the making of public policies that had previously been Page 2 follows:
made (or, it is widely believed, ought to be made) by other governmental agencies, especially legislatures and executives, and
2. the process by which nonjudicial negotiating and decisionmaking forums come to be dominated by quasi-judicial (legalistic) rules and procedures. (p. 28)
They term these meanings "Judicialization I" and "Judicialization II" for short (p. 516). (They also dub these meanings "judicialization from without" and "judicialization from within," respectively.) It is confusing, therefore, when the editors equate the geographic spread of constitutional-review bodies with the two phenomena in Vallinder's definition: "The phenomenon we have just described [the geographic spread] represents the most dramatic instance of the global expansion of judicial power, which, for brevity, we shall frequently refer to as the 'judicialization of politics.'" (p. 5) Tate also notes (p. 26) evidence that Judicialization I and Judicialization II need not covary. It would have been more helpful to document separately the expansion or non-expansion of each of the three phenomena being included in the book's title.

The first three chapters, which set the conceptual stage for the country studies that follow, do not include an effort at systematic empirical verification of the claim that the judicial power is expanding globally. The editors argue (p. 515) that they are "not in a position to provide reliable and valid measures of the extent to which the two varieties of judicialization have developed within the nations treated in this book, much less for other nations." I suspect, however, that assessing the actual trends at work can only be done if the concept of judicial power is unpacked. The inclusion of the three distinguishable phenomena into one concept strikes me as likely to obscure rather than illuminate.

The lumping together of these three phenomena also make more difficult the job that Tate undertakes in chapter 3 of discussing what might be the causes of the global expansion of judicial power. Some of the eight reasons he lists apply only to one or the other of the three phenomena. Some seem to be endogenous, not exogenous explanatory factors. In any case, the search for a model that explains why judicial power of a given type seems attractive in different countries is most likely to be fruitful when the three phenomena are examined individually.

Symptomatic, perhaps, of trying to pack too much into the one concept is an anecdote cited as evidence of a court being involved in legislating. As I interpret the information the reader is given, however, this is actually not such an instance. The anecdote, with which the book starts off, concerns recent Texas politics. The lieutenant governor is described as plaintively appealing to the Texas public for suggestions on how to get out of a fix: The Texas Supreme Court has declared the state's public education funding system to be unconstitutional, and the legislators cannot come up with a politically viable alternative. The editors refer to this (p. 2) as a case of "vigorous policymaking" by the court. On the contrary, however, it is because the court only ruled out the existing

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system without devising a new one (i.e., without "legislating") that the lieutenant governor had to cast about for what to do. If the Court had indeed made policy, the legislature would not have been stymied. It would seem to be the Texas constitution that put the politicians in a fix, not the judges. Moreover, one of the important things that comes out of later chapters is that in some countries the bodies with the power of constitutional review of legislation actually do provide the wording of what would be constitutionally acceptable.

To further support the need to disaggregate the different phenomena, I want to pose the possibility that the geographic spread in this century of countries with judicial review might be making either or both of the other two phenomena look more trend-like than they are. If one assumes that courts with any degree of involvement in constitutional review or rights protection will seek to flex their institutional muscles vis-a-vis the legislative and/or executive institutions, and that this process is likely to take some time, then what is occurring in many of the countries under study might primarily be the natural aftermath of the post-war spread throughout much of the West of a constitutional model of democracy (that is, the introduction of constitutional courts or commissions). In other words, the larger prominence of courts might mainly be a function of there being more courts. As in any relationship, the relative power of a country's courts, legislature and executive will vary over time. Yet the secular upward trend in judicial strength that premises the volume might well be a reflection of developments in the 1940s and 1950s that will level off soon if it hasn't already. In the new democracies, the process might well last several more decades (or only really begin after another decade or two), but in these countries as well some equilibrium ought to be expected.

I do not mean to suggest that this can account for the entirety of what is occurring. The interesting cases are those few countries which have been institutionally stable since before World War II yet in which a verifiable increase in the power of courts can be documented. Sunkin's chapter on the United Kingdom makes clear that judicial involvement in key policy arenas has grown in recent decades without new courts or a new rights-based constitution being promulgated. (Although, Sunkin stresses the relevance, especially for Britain's future, of European courts. Hence, the main factor might again by "more courts.")

Beyond this need to analyze separate things separately, those building on the analyses in this volume (and other recent work) ought to approach the judiciary's role in politics with as much attention as possible to the entire social-institutional setting. In other words, starting from the judiciary alone is rather arbitrary. The phenomenon of one set of institutions influencing the behavior of others involved in the same policy arena(s) is not restricted to the judiciary. Whether the constitutional principle is division of labor or interdependence among branches of government, the need to act strategically by anticipating the other side's action will mean that each institution comes to look somewhat more like the other. In other words, it seems equally valid to analyze -- forgive the wording here -- the "executivization" of legislatures (e.g., oversight) and the "legislationization" of executive-branch agencies (which everywhere

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are heavily involved in the process of drafting laws). Indeed, both phenomena are frequently analyzed. To make an analogy to the study of economics, the goal should be the development of a "general equilibrium theory" that looks not only at one or a small set of variables but at the interrelations and feedback loops among numerous variables (in this case, state and non-state institutions). Assessments of the impact of new judicial roles (for democracy, for good government, for public safety, etc.) will be on firmer ground to the extent that all the relationships are traced out. Let me point out, by the way, that several of the chapters in this volume do an excellent job of depicting the entire institutional environment within which a country's judiciary operates.

My final point pertains to what should be made of the developments analyzed in the volume. In the three introductory chapters, the editors maintain a social-science tone, by depicting the book's goal as one of assessing and explaining the global expansion of judicial power (in its three facets). However, the predominant theme that runs through the book is not explicitly stated by the editors until their concluding chapter (p. 526): Is the expansion of judicial power a good thing, within any given country and worldwide? Many of the most fascinating chapters (Shapiro, Bogart, Zannotti, Landfried and others) are the ones that confront this head on and take a position. I wondered, therefore, why the editors do not bring this important issue of theory into their discussion early on and make explicit that confronting this issue is one of the goals of the book.

Perhaps this is because the editors did not want to be seen as having an agenda. Despite their social-science tone, the editors' first three chapters do convey that they see reason for concern, at the least, in the trend toward expanded judicial power. They admit as much in the conclusion (p. 527). It would not have been unacceptable to state their concern in laying out the issues. Instead, they resort to frequent references to the concern that "some people" have about increased judicial power.

The succeeding chapters (studies of one or another aspect of the topic within or across countries) vary in the degree to which they accept the implicit framework put forth by the editors (though all link their arguments, when appropriate, to the definition that Vallinder provides). Many, but not all, share the editors' concern about the trends. The first country study to follow the editors' chapters is Shapiro's essay on the United States. Shapiro asks an important question: Since courts are one of three independent and equal branches of American government, why should they not be as involved in "pluralist, interest-group, single-issue" politics as the other two? (pp. 59-60) Shapiro also notes a self-limiting tendency in any expansion of courts' political power. Similarly welcome is Bogart's chapter on Canada in which, after explaining that at the heart of debates over the role of the judiciary often lie differing visions of democracy -- constitutional, rights-oriented vs. assembly-oriented -- he notes:
...making hard pronouncements about the differences an entrenched rights document will make, particularly over the long haul, is obviously impossible. But such uncertainty is at least as much a basis for a skeptical attitude as it is for Olympian pronouncements Page 5 follows:

about the benefits of judges in our lives. [. . . Also,] to judge the impact of litigation upon any society is to enter the realm of cause and effect, a tricky issue if ever there was one, perhaps particularly in terms of social and political ordering. (p. 118)
The editors end the volume by arguing that they and a majority of the contributors conclude that the expansion of judicial power poses a danger to democracy. My reading is that the debate was so interesting on both sides that any firm conclusion would be premature.

I hope that this volume will heighten awareness of how much can be learned about politics and the law through attempts to answer such questions as: Why are new democracies selecting a form of constitutionalism with strong bodies for judicial review? What impact does such a selection have on subsequent politics and legal development? Where and under what conditions do we see new powers being accrued (in the absence of institutional change) by courts? How are other institutions responding? What are the reasons for and consequences of increased "legalization" of executive-branch and legislative behavior? And, yes, what are we as scholars and as citizens to make of the developments we find?