The Limits of Judicialization

Abstract

A growing body of literature has suggested that courts are becoming increasingly powerful political actors in many contemporary democracies. This trend is supposed to be stronger where constitutional courts perform a so-called "abstract review" of legislation. Such courts are the potential recipients of litigation by opposition parties against legislation passed by parliamentary majorities, and enjoy the power to veto it if they find unconstitutional provisions. Since oppositions have unrestrained incentives to contribute to the expansion of these courts's jurisdiction and the latter are unconstrained by majority will, the inevitable result should be an important and systematic reduction of the discretion enjoyed by legislative majorities. Focusing on the cases of Spain and Portugal, where constitutional courts have been in place for about two decades, this study challenges such understanding of the consequences of abstract review of legislation. Its first part deals with the institutional design of constitutional courts in both countries, including the rules of appointment and retention of judges frequently neglected by the extant literature. It shows that, unless conditions are such that presently dominant political actors can shape judicial institutions as insurance mechanisms against their future displacement from power, the resulting rules are likely to prevent the conversion of courts into full-fledged countermajoritarian actors, and may even allow for their congruence with and responsiveness to the preferences of both present and future majorities. The second part of this study discusses how, in the last two decades, those institutional rules have actually shaped the incentives and constraints faced by majorities, oppositions, and judges. On the one hand, the possibility that strategic oppositions experience policy and electoral costs from litigation has contributed, most of the time, to keep the jurisdiction of constitutional courts over legislative processes under relatively strict boundaries. On the other hand, strategic judges have reacted to institutional constraints, remaining responsive to the parties that appointed them and displaying deference towards contemporary majorities. Thus, the pressures towards the judicialization of politics resulting from the creation of abstract review institutions in Spain and Portugal have been effectively contained, preventing an inexorable trend towards a government of judges.