In Search of a Happy Medium?: Appointment of Constitutional Judges in Comparison

• In Event: Democracy and Courts: Navigating Backsliding and Building Trust

Abstract

Recent literature on Democracy emphasizes importance of rule of law mechanisms (Ginsburg and Huq 2018). Judicial review of statutes isdeemed indispensable for that purpose. However, institutionalization of judicial review is relatively recent phenomena in mostparliamentary democracies (Stone Sweet 2000) and the effect of different institutional designs is not well known. My paper is an attempt toilluminate an aspect of institutional mechanisms for effective judicial review.
Constitutional design of judicial review has to mitigate tension between the two opposing goals. On the one hand, Judiciary has to beindependent enough to delimit the boundary of political action and to annul statutes if necessary, by which lawmakers are induced torefrain from abusing their power opportunistically. On the other hand, Judiciary must be legitimate enough to do so, by finding a way toreconcile itself with popular legitimacy expressed through legislature.
In other words, effective design of judicial review needs to find a “happy medium” between independence and democratic control. Toexplore the nature of the “happy medium”, this paper focusses on the methods of appointment of higher, statute-reviewing courts, namelyConstitutional Courts in the Civil Law countries and Supreme Courts in the Common Law countries, of the OECD countries. The focus onappointment is natural as it is the most usual way of control of an institution. By mapping different methods of appointment, this paper willshow that there is rough inverse relationship between autonomous selection within legal profession and the review power given to theJudiciary.

Author

• Ryosuke Amiya-Nakada, Tsuda University