Title: Lords of Democracy: The Judicialization of"Pure Politics" in the United States andGermany
Abstract: For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even ifl knew how to choose them, which I assuredly do not. 1I. IntroductionThe pitched legal struggle for United States Presidency that raged for thirty-six days after November 7, 2000 election, culminating in United States Supreme Court's five-to-four decision awarding Texas Governor George W. Bush Presidency on December 12, 2000,2 left me feeling deeply dissatisfied. Completely independent of result of Court's intervention, a more generalized concern for a democratic process pursuant to which five judges could pick President contrary to will of a narrow but clear popular electoral majority has nagged me. In fact, because I was living in Germany at time of election and its legal aftermath, my concern was anything but rhetorical. German colleagues and friends routinely asked me, with motives ranging from sincere curiosity to piety, to explain what Supreme Court had done and what it meant in democratic scheme of things. These questions were justified. Indeed, what kind of democracy is that?3This Article is my attempt to answer to that question. Along with Richard Pildes's query,4 this piece is also conceived as a reply to Frank Michelman's questions: Princes for judges. Is that what Americans want? Would that be keeping faith?5 It is, as well, a consideration of claim Mark Tushnet and Ran Hinschl pressed that Bush v. Gore manifests a nascent phenomenon extending judicialization to electoral arena itself.6 Importantly, these are questions relevance of which recent election cases arising out of 2002 New Jersey United States Senate race7 and 2003 California gubernatorial recall8 kept alive. Fittingly, my analysis has led me to reflect on Germany's constitutional response to contested elections.9 I begin by accepting democratic dualism marked out by terms and politics.10 I invoke these opposing concepts with terms judicialization11 and popularism.12 I clarify these concepts and dialectic they represent more fully in Part II. Roughly summarized, judicialization occurs when shifts in balance of power between and politics favor judicial institutions over representative and accountable institutions.13 From this basic dualism, this Article argues that Supreme Court's decision in Bush v. Gore14 constitutes a dramatic and unique judicialization of American democracy. In Part III, this Article introduces Supreme Court's Bush v. Gore decision and German Federal Constitutional Court's decision in Hessen Wahlprufung Entscheidung (Hessen Election Review case).15 Because these cases involved review of contested elections and respective courts decided them only a few months apart, they serve as parallel constitutional moments for examining this constitutional development in a comparative context.16 In both cases, courts preferred judicial over alternative, if not constitutionally mandated, political mechanisms for resolving respective election challenges. The context of these cases, in sphere of what this article terms pure politics,17 is of unique democratic import and serves as crux of Article's thesis. It is here, with respect to this distinct sphere of democratic process, in which forces of judicialization and popularism come directly and most perilously into conflict: The judiciary acted in both of these cases to seize very apparatus that led to selection of a candidate or success of a political party in a specific election. Here we are concerned with a far more meaningful imposition on popularist values than that posed by judicial review of legislation which is widely treated as sine qua non of judicialization,18 or even other indirect forms of judicial engagement of law of democracy.19 Whatever case might be made for propriety, necessity, or inherence of a judicial role in the political thicket20 in these contexts, it is altogether another thing to have courts settling elections, and in so doing, picking people's representatives. …
Publication Year: 2004
Publication Date: 2004-04-01
Language: en
Type: article
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Cited By Count: 7
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