Are Strong Constitutional Courts Always a Good Thing for New Democracies?


This Article’s starting point is the recent series of direct political attacks by governments on constitutional courts in several new democracies that has had a sobering, if not deflating, effect on what had been the bullish mood concerning the role and success of judicial review in constitutional transitions. It takes the opportunity of these striking episodes to reconsider the standard model and engage in some pragmatic reflection on whether and how, as currently institutionalized, judicial review might sometimes also disserve new democracies in their aspirations to become stable and established ones. The Article argues that, as far as courts are concerned, the most important, basic, and essential goal for transitional democracies is not establishing final authority to invalidate legislation, but establishing and maintaining the independence of the judiciary, and that this latter must be the top priority if and to the extent there is any practical conflict between the two. In fact, both of the key elements of the independence of the judiciary are more likely to be placed under stress when courts have and exercise “strong-form” review powers than when they do not, resulting in additional and unnecessary pressures in an already difficult context. “Weak-form” judicial review provides an alternative that may permit constitutional courts to perform many of their beneficial functions in the transitional context, but in a less confrontational way that reduces the risk of systemically counterproductive political attacks on judicial independence.