It is sometimes suggested that one or another constitutional or supreme court (for example, the U.S., Indian, or German) is the “most powerful in the world.” And yet it is often far from clear what the measure of power is or should be, what the sources of judicial power are under the given measure, and what explains why some courts are more powerful than others. Is strength mostly a function of formal powers, so that, for example, a court with the authority to invalidate a constitutional amendment on substantive grounds is ipso facto more powerful than one that may only invalidate statutes, which in turn is more powerful than a court that can do neither? Yet, both the U.S. and Japanese supreme courts are in this middle category; indeed they have roughly similar sets of legal powers overall, but while the former is often considered among the most powerful courts in the world, the latter is often considered among the weakest. Thus, it seems clear that formal powers do not tell the whole story, but what part do they play, if any, and what else helps to fill in the picture? Although looking to how courts actually use their legal powers is obviously also relevant, it too falls short. For what we are additionally in search of are factors that help to explain why, for example, the U.S. and Japanese courts use their powers in such different ways.
This Article seeks to shed light on all three parts of the uncertainty: the measure; sources; and explanation of judicial power. It begins by proposing that the proper measure of the power of a constitutional court is its consequential nature as an institutional actor in terms of affecting the outcomes of important constitutional and political issues. Although more diffuse and harder to quantify, this conception of judicial power is more inclusive and realistically nuanced than commonly employed uni-dimensional alternatives, such as international influence or strike-down rate. The Article next argues that the consequential nature of a constitutional court is a function of three broad variables: formal rules and powers, legal and judicial practice, and the immediate electoral and political context in which it operates. Through a process of mutual interaction, each of these three helps to shape and constitute the more specific components of a court’s institutional power, which include the nature, scope, and content of the constitution it enforces, the jurisdictional and remedial powers it has and employs, the ease or difficulty of constitutional amendment, and its composition and tenure. Moving from measuring to explaining the strength or weakness of constitutional courts, the Article next identifies and discusses three explanatory variables: deliberate constitutional design choices, legal culture, and general or structural political context. The Article concludes with case studies of the supreme courts of India and Japan that illustrate the role and interaction of these multidimensional evidentiary and explanatory factors.
Stephen Gardbaum, What Makes for More or Less Powerful Constitutional Courts?, 29 Duke Journal of Comparative & International Law 1-40 (2018)
Available at: https://scholarship.law.duke.edu/djcil/vol29/iss1/1