Court Building in Brazil and Mexico

Court Building:Ginsburg and Hirschl

1

OverviewKey question:What are the origins of judicial power?Recall concept of judicial power, and then think about the causes of judicial empowermentWhy do courts become stronger (gain more power) in some places or at some point in time, while they fail to do so in other places and times?

Underlying puzzle:Why do politicians delegate power?Why would politicians choose to give away some of their power effectively constraining themselves by empowering another branch of government (courts)?

2

OverviewWe look closely at two explanations:Ginsburgs insurance logicHirschls hegemonic preservation logicObjetives:General understanding of each argumentUnderstand concrete sequence of events expected by each argumentBe able to apply the argument to different episodes of reform in order to judge whether the arguments help explain judicial empowerment, or which argument offer a better explanation of reform

3

Ginsburg 2003Insurance Explanation of Judicial Reform/EmpowermentGenerally, what does Ginsburg mean when he says that judicial reform is motivated by the desire for political insurance?Short answer:Judicial reform (giving power to courts) in the present makes sense if politicians are trying to protect themselves from some future threatThat is, enhancing the real power of courts today so those courts will protect you tomorrow is the equivalent of buying insurance today in order to be protected from some future risk/danger

4

Concrete sequence of expected eventsPresent political majorities (dominant, ruling group) feels some threat or uncertainty regarding their future power (e.g., electoral margins getting thinner over time, polls or research anticipate upcoming defeat)Prior to election in which present majority anticipates a real possibility of losing (and thereby becoming the political minority), they pursue judicial reformJudiciary is strengthened in real terms; that is, it acquires real power to protect political minoritiesAlternation in powerNewly powerful court protects new political minority*** Note: evidence in favor of argument would be strongest if all 5 events are observed, but do you really need all 5?What if you only observed the first 3 and then the initial political majority still managed to remain in office?

5

Hirschl 2001Hegemonic preservation argumentGenerally, what does Hirschl mean when he says that judicial reform is motivated by hegemonic preservation?Short answer:Hegemonic (i.e., dominant) elites preserve their power and influenceThese elites only empower courts if sympathetic, friendly elites are among the judges on the courts6

Hegemonic PreservationLonger answer:Cultural, economic, and legal elite join forces to delegate policymaking authority to judiciaryInsulate or protect preferred policies from majoritarian processesSays electoral competitiveness is not necessary (105)Is this correct?

7

Concrete sequence of expected eventsPresent political majorities (dominant, ruling, hegemonic group) feels some threat or uncertainty regarding their future powerPrior to losing power/influence in majoritarian branches of government, dominant elites delegate power over key policy issues to the judiciaryMove key policies from majoritarian arenas to minoritarian onesOnly do so if judges are part of the dominant cultural/political groupOld dominant group loses control of majoritarian officesNewly powerful court continues to protect and uphold preferred policies of old dominant group*** Note: again, evidence in favor of argument would be strongest if all 5 events are observed, but do you really need all 5?What if you only observed the first 3 and then the initial group still managed to remain in office?

8

ConclusionsHow are the two arguments similar?If Ginsburg and Hirschl are correct, what would you expect to see in the real world that would be consistent with both arguments?How are they different?If only one or the other is correct (Ginsburg or Hirschl), what are some concrete events you could look for in the real world that would help you say that it was definitely insurance or definitely hegemonic preservation that explained an episode of judicial reform?

9