Judicial Activism in Post-Communist Politics

By Smithey, Shannon Ishiyama; Ishiyama, John | Law & Society Review, January 1, 2002 | Go to article overview

Judicial Activism in Post-Communist Politics


Smithey, Shannon Ishiyama, Ishiyama, John, Law & Society Review


Introduction

This article documents and provides possible explanations for the degree of judicial activism in eight post-communist countries. We examined constitutional court cases for the three years following the initial adoption of a constitution in the Czech Republic, Estonia, Georgia, Latvia, Lithuania, Moldova, Russia, and Slovakia. We found that contextual political factors, such as the extent to which the party system is fragmented and the extent to which the court enjoys popular trust and confidence (rather than the formal powers entrusted to the court by the constitution or the structure of the political system), contribute most to the degree of activism by constitutional courts.

Until recently, judicial politics scholars paid little attention to courts outside the United States. Comparativists have been even less likely to focus on courts for their own sake. Recently, there has been a significant increase in the comparative study of courts by members of both fields. One reason for this increase, especially among comparativists, has been the revival of interest in institutional effects on political developments, particularly in those newly democratizing countries that are busy designing and implementing new constitutional structures.

Scholars examining the effects of laws relating to executive institutions and elections have provided a wealth of data on the emerging democracies of post-communist Eastern Europe and the former Soviet Union (Hellman 1997; Frye 1997; Ishiyama & Velten 1998; Ishiyama 1996, 1997, 1999; Holmes 1993; Moser 1995, 1998, 1999; Moraski & Lowenberg 1999; Taras 1997; Elster 1997). While there have been a number of descriptive studies of Eastern European courts (for example, Melone 1996, 1997; Sabaliunas 1996; Ovsepian 1996; Schwartz 2000), only a few studies have focused on the design of judicial institutions (Magalhaes 1999; Smithey & Ishiyama, 2000). Even less systematic comparative work has concentrated on the political effects of constitutional choices on the performance of constitutional courts.

This article examines one consequence of empowering judicial institutions-the degree to which judges have become actively involved in deciding constitutional disputes. We examine the degree to which judges disallow the policy choices of other policy makers and explore several factors that contribute to such activity. We find that political factors, such as partisan competition and political support, make more of a difference than the formal institutional factors that have drawn many scholars to the field in the first place.

Conceptualizing Judicial Activism

Judicial activism is a multifaceted concept.1 Though activism is defined in a number of ways, the ability of judges to exercise political power is at the heart of the concept. For example, Galligan defines judicial activism as "control or influence by the judiciary over political or administrative institutions, processes and outcomes" (1991:70). Courts wielding greater degrees of such control or influence are more activist.

We can begin to assess the degree of judicial activism by considering a court's jurisdiction and caseload. Broad jurisdiction allows courts to weigh in on a wider range of policy issues, increasing the scope of judicial policymaking. The volume of cases decided is also relevant-a court that seldom makes decisions has fewer opportunities to influence the course of public policy than does a more active bench.2 In general, courts that decide more cases, across a greater range of issues, should be considered more activist than those that decide a smaller number of cases across a narrower range of subjects.

Case outcomes are also important. Courts influence the course of public policy in their everyday task of applying the laws to settle disputes.3 Nevertheless, judicial review is considered a more significant source of court power since it allows judges to trump others' policy choices (for example, Galligan 1991; Holland 1991).

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