Strategic judicial responses in politically charged cases: East Asian experiences

Abstract

Political turmoil sometimes gives courts the opportunity to decide the fate of the top political leadership. Such judicial decisions are difficult and easily backfire. Recently, however, the constitutional courts in South Korea and Taiwan have rendered decisions that have resolved political crises successfully. By examining the two cases in detail, this paper finds that both decisions employ a strikingly similar judicial strategy. Both cases create "win-win"situations, issue a decision with a single voice, use literal interpretations, and adopt self-empowering legal doctrines. This paper argues that these features are critical to their success. In addition, the paper finds that the two political milieus were also similar. Both cases were decided in the context of a divided government; however, the democratic commitments of the political actors had become entrenched. The paper concludes that well-crafted judicial strategies alone will not guarantee success, and judicial solutions, to varying degrees, are dependant on favorable political contexts and always run the risk of politicization. © The Author 2010. Oxford University Press and New York University School of Law. All rights reserved.