A Dynamic Theory of Judicial Role

Recent scholarship has focused heavily on the activism of courts in the fragile democracies of the “Global South.” Courts in countries like India, Colombia, and South Africa have issued landmark decisions in difficult political environments, in the process raising unanswered questions about the appropriate conception of judicial role in these climates. Much of the judicial and academic effort in these contexts is self-consciously oriented towards using courts to carry out basic improvements in the quality of political systems seen as badly deficient. In other words, the core task is to improve the quality of the democratic system over time. These kinds of democracy-improving theories obviously bear a re-semblance to “political process” theories in United States constitutional law, but generally differ in terms of the sweeping degree to which democracy is viewed as dysfunctional. This Article critically examines the democracy-improving model of judicial review. It argues that such a theory faces several important challenges: more work must be done to assess the plausibility and effectiveness of judicial action to improve democracy, as well as the ability of the theory to distinguish between proper and improper uses of judicial power. At the same time, it sheds new light on important problems in the field of comparative constitutional law and suggests a useful empirical agenda: rather than asking whether courts actually are overstepping their bounds by taking on legislative tasks, scholars can ask about the effects of different strategies of judicial activism on the evolution of different kinds of dysfunctional political institutions