Judicialization of Democracy

Democracy has always been a key to success of leadership in many leading countries globally. It refers to a rule of the people whereby their voice matters in every decision making in a country ("Democracy"). Since the beginning of humanity, laws, politics, and policies have always influenced the way of living with different arm acting independently. A court is a legislative arm that defines what is wrong and right ensuring that democracy prevails in a country. However, in the 21st century, there has been a rising phenomenon of judicialization in democratic countries such as Canada and the United States. Judicialization of politics refers to the total reliance of the courts and the judicial system in addressing key public policies, moral predicaments, and other political controversies (Hirschl 72). Several debates have risen in the past regarding the effect and the legitimacy of judicialization of the democratic politics with different scholars having various perspectives. It limits the legislative functions of the courts, thus presenting some form of “oligarchy” in the democratic politics, which is a mode of elite instead of a popular rule. Thus, the courts should not be used in the policy making.

Using courts in achieving policy goals leads to the disempowerment of the elected representatives. If the courts in the US would participate in the correction of the executive and legislative branches of government constitutional errors, those institutions will fully rely on it in doing so, thus stopping discharging their own duties to remain within the Constitution boundaries (Bickel 22). When the courts have much power in deciding the outcomes of policies that govern a country, it renders the output of the elected official who is supposed to pass the bills in the parliament. Democracy requires the equal participation of all citizens whereby, in this case, the former is supposed to make the laws. With the court being involved, the function of the parliament is limited, thereby derailing the democratic process (Sandmann 112). The legal professionals with their transnational networks and dormancy of the parliaments have instigated the disempowerment as it offers the professional community the trusteeship role. The disempowerment of the elected representatives can be traced back to the origins of the United Kingdom Supreme Court, which lies in rational relations particularly between the political actors. In the power dynamics that involves the parliament and the Supreme Court, the courts are deferential to the parliament, thus making it reciprocate by complying with the Supreme Court’s rulings even in situations whereby the parliament’s supremacy is impinged (Guarnieri " Pederzoli 216).

Courts’ involvement in politics also leads to the derailment of democracy since judges in all courts all over the country are not in the office on the basis of being elected, thus voting them out of the office becomes a major issue with exception of some few states in the USA. It prevents referring to them as “the citizen's delegates” even if the elected representatives who might participate in the appointment directly or indirectly respond to political pressures that might arise when doing so. The analogy, nevertheless, is tenuous since the trustees are not only authorized directly by the members of their states but are directly accountable to any of their fiduciary duties breaches that are bound to them that can come in different forms such as incompetence, corruption, or sexual assault (Pettit 79). Notwithstanding the representative’s policy judgment independence, the public can see whether the judges are just tools representing them in courts or their trustworthy servants, thus, can be voted out of office in states that they are elected. Judicialization removes the judiciary from any democratic accountability and authorization. Thus, the involvement of judges in the policy-making makes them accountable to no one in the system but themselves. The act threatens the judicial independence, hence, limiting democracy in a country.

When the court upholds a particular statute’s constitutionality, it definitely legitimizes it, thereby subverting democracy (Black 67). If the statute also expresses its enlightened community sentiments, this legitimating role might serve the critical function of adding dignity and impetus to dealings tentatively enacted. Unfortunately, the Constitutional seal of the court’s approval has a similar impact where the statute is a suppressive one. Thus, when the court manages to validate such a statute, it adds more moral fuel to the political fire; thus, the odds of a legislative repeal are reduced. Naturally, many attorneys understand that the court’s ruling that a statute is constitutional means nothing regarding its wisdom. Nonetheless, up to the moment that the Supreme Court approves it, the argument of the opposition, which is unconstitutional, may encourage the majority to take another look (Scheppele 24). As per the Constitution, the moment that any Supreme Court approves a statute, the opposition faces an undercut. Therefore, it is perchance instructive to note that even in other cases whereby the court has managed to express moral disapproval of the statute while, on the other hand, upholding its constitutionality during the ruling, the legislature has dynamically averred its accredited prerequisite. For example, the Supreme Court adversely upheld the salute rule of the compulsory flag in Minersville School District v. Gobitis (Reynolds 7), the legislature in West Virginia, a statute that is comparable for the whole state. Finally, after three years, the court reversed its ruling thereby overruling Gobitis in West Virginia State Board of Education v. Barnette (Sandman).

Politics are usually controversial and, thus, will taint the transparency of the legislature and reduce the trust of citizens in the court. Typically, politician manifestos are always drafted with the aim of winning an electoral support, therefore, they will try to gain the trust of the public to obtain the required number of voters to win an election and defeat their opponents. Furthermore, politicians who are legislatures are usually obliged to adopt party lines, thus remaining outstandingly true to their parties. Nonetheless, it does not indicate that the candidates are simply delegates who are only meant to represent the interests of those assisting them in winning an election since they are elected by the public to represent them in the government. In the process of elections, the use of incentives is involved to produce government programmes that are capable to win the support of the majority of citizen’s opinion, a requirement needed by the government for sustainability and gaining trust from the voters. The parties might also receive donations from other people who might need a favor from the candidates when they win; thus, the scenario will contradict the legislative politicians once they win the elections. Parties usually have their different ideological views with each of them trying to devise unique policies that will draw the public to support them in the national elections. In the process, alliances are made to ensure the policies are implemented in the future. The means and the ways of the operation that the parties use to gain trust contradict the legislative politicians even without their knowing; therefore, when the public reveal it at some time, they lose interest in their judicial system.

Judges indisputably resemble the political representatives, especially in arbitration between interests that are conflicting with each other; however, this shared characteristic only highlights the politician’s roles rather than the judge’s representative traits in the legislature. Higher-ranking laws such as a written constitution or a parliament statute may rely on the interpretation of the judges, but the broad scope of discretion from the judicial branch in particular legal interpretations and the commitment of the judge's irreversibility erode the typical link even with the least kind of self-governing trusteeship. The court judges may operate as pronouncements trustees (such as the constitution, statute, or any other conventions), which was legitimized democratically. Nonetheless, the trustees also can betray the trust of those who crafted the law. Certainly, the law of trust is based on the level that the remedies found in the claims where the trustees abuse the trust (Pettit 119). Hence, at times, judges might be accused of making the judgments based on their rulings that contradict the trust placed on them to reflect on their personal needs rather than the ones of the elected politicians who contributed to the making of the constitutions, the statutes, and the conventions. The scenarios make the credibility of the judges to be questioned with doubts being cast on them, which is a great threat to the judicial system. Therefore, it is crucial for the judges to practice indiscretion when it comes to court cases.

Nevertheless, the courts’ involvement in the process of achieving policy goals can also lead to democracy through the enlightenment of the juries. The court that also incorporates “a common law trial jury” can provide a great representation of sampling. Nonetheless, to be completely efficient, the jurors involved must be aware of the nullification power. Conversely, marginalization of the jury is attributed to the origin of judicialization of politics in the United States; thus the importance of juries knowing their full rights in courts is evident (Dezalay and Garth 164). During that period, juries acted majorly as rubber-stampers whereby the independent judgment was controlled by instructions from the judges who at times were not impartial. For instance, in the US v. Thomas, 116 F. 3d 606, 614 (2nd Cir. 1997), the right of a trial judge was upheld following a juror’s decision to excuse herself from the court during the nullification process (Haynes 732). It came after the juror believed that the government had sufficient evidence to win the case against Thomas. Nullification refers to a violation of any jurors’ oath in applying the law as directed by the court in rendering a true verdict as per the evidence presented in the court (Scheppelle 19). However, the cases that involve juries following the judge’s instructions are currently limited. Juries can assist in maintaining democracy in the courts even if the judge is impartial or makes a ruling based on a political move since their decision matters most in the final verdict.

The court's involvement in policy-making in many countries derails the democratic process. Courts were established to enhance transparency and restore trust in the public. They are supposed to act independently without interference from third parties who might want favors from the judges and the juries. Judicialization affects the courts negatively such as politics being a controversial factor that can easily taint the transparency of the legislature. When the legislative politicians are involved in elections, they will be forced to oblige to their parties’ instructions whereby, in most cases, the latter are actively seeking funds for their candidates by receiving donations from other citizens who might be expecting favor from those vying after they win. The court's involvement in policy-making also leads to the disempowerment of elected representatives whereby they voice is heard much more than the parliament’s one; thus the opinions are unbalanced. The courts upholding a specific statute’s constitutionality also legitimizes it, therefore subverting democracy. Courts’ involvement in the achievement of policy goals also results in the disempowerment of the elected representatives. When courts are offered with excess powers, especially in amending the policies, which is supposed to be the function of the parliament, the politician’s functions are limited.

Works Cited

Bickel, Alexander, The Least Dangerous Branch. Yale University Press, 1986.

Black, Charles. The People and the Court. The Macmillan Company, 1960.

"Democracy". State Goverment, 2018, https://www.state.gov/j/drl/democ/. Accessed 20 March, 2018.

Dezalay, Yves, and Bryant G. Garth. Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy. University of Michigan Press, 2002.

Guarnieri, Carlo, and Patrizia Pederzoli. The Power of Judges. Oxford University Press, 2002.

Haynes, Elizabeth I. "United States v. Thomas: Pulling the Jury Apart." Conn. L. Rev., vol. 30, 1997, pp. 731-742.

Hirschl, Ran. The Judicialization of Politics. Oxford University Press, 2018.

Pettit, Philip. Equity and the Law of Trusts. Oxford University Press, 2016.

Reynolds, Carl. "Minersville School District v. Gobitis." Brigham Young University Prelaw Review, vol. 12, no. 1, 1998, p. 7-9.

Sandmann, Warren. "West Virginia State Board of Education v. Barnette." Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions, 2003, pp. 100-115.

Scheppele, Kim. Democracy by Judiciary. Central University Press, 2005.

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