In early nineteenth-century America, Alexis de Tocqueville (1835) famously observed, “[S]carcely any political question arises…that is not resolved, sooner or later, into a judicial question.” That may have been a considerable exaggeration at the time, but today, the dynamic Tocqueville highlighted marks many constitutional democracies in which independent courts are vested with powers of judicial review. In such countries, political actors, organizations, and ordinary individuals who become enmeshed in political conflicts have strong incentives to frame their desires as constitutional or statutory claims and ask courts to vindicate them.

As a result, in the early twenty-first century, courts have become versatile actors in the governance of many constitutional democracies, and judges and justices play multiple roles in politics and policymaking. *As many observers have noted, politically consequential courts have emerged in new democracies from Korea to South Africa to Brazil and beyond; courts in more established democracies such as Canada and New Zealand have been given or have assumed more power to protect individual rights and invalidate government policies; and both the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) have taken on dramatic roles in European governance.

This chapter analyzes an important and complex development that is currently playing out at the intersection of the French and European judicial systems: a whole series of courts (and court-like institutions) that had little or nothing to do with “judicial review” are now in the midst of a mad scramble to master and direct the development of fundamental rights jurisprudence. This chapter traces this development and explains how the advent of the European Court of Justice and the European Court of Human Rights has led to an intense interinstitutional competition between the French and European High Courts, a competition in which fundamental rights have served both as the opportunity that triggered this competition and the preferred means to engage in it.

Part of the story of the dramatic rise of fundamental rights is undoubtedly social and intellectual in nature. At the domestic level, France has been increasingly fragmenting along pluralistic lines. This fragmentation has posed ever greater challenges to French republicanism, which has traditionally stressed the unitary nature of both “the general will” and “general interest.” The result has been a marked rise in individual- and group-oriented pluralism increasingly expressed in fundamental rights terms.

The expansion of high courts’ roles in governance, this book asserts, has become a prominent feature of modern democracy. This chapter, focusing on the Hoge Raad, the High Court of Cassation of the Netherlands, illustrates that trend. However, the story of the Hoge Raad in the last four decades also shows that shifts in judicial roles are not always permanent. For lack of internal leadership, over time the Hoge Raad passively retreated from some activist roles in governance, and other political, administrative, and judicial bodies – hungry for influence – partially shouldered it aside. In recent years, however, the Court has shown signs of resurgence. This chapter demonstrates that the analysis of judicial roles in governance must be attentive to the place of courts in the broader political landscape, to the important roles that courts fail to play – to the ebb and flow of judicial power – as well as to the effect that societal and political changes can have on judges’ roles in governance.

The Kingdom of the Netherlands is a small country that does not have a tradition of visible courts. Article 120 of the Constitution forbids judicial review. For a long time it was deemed unthinkable that Dutch politicians would enact laws that did not comply with the Constitution; this assumption reflects the general trust in authorities that was so characteristic of the Netherlands (Koopmans 2003: 76–77; Hofstede 1991). Thus, for a long period of time the Dutch people were accepting of their ruling national elites (Buruma 2006). The country is governed by coalition governments with varying political combinations. This solid tradition reflects a submissive electorate that until the end of the 1960s was organized and disciplined in four separate socioreligious, vertically organized groupings known as pillars (Lijphart). The Netherlands has a queen as head of state, which makes my country an odd case for a positive theory of democracy. Moreover, Dutch political culture has been labeled as a consensus democracy, as opposed to majoritarian democracies such as the United States and the United Kingdom. Ten Kate and Van Koppen have described the “hands-off” relationship between elected politicians and appointed Hoge Raad Justices. They predicted in 1995 that the time had come for judicial review in the Netherlands (ten Kate & van Koppen 1995, van Koppen 1990). However, some plans are still pending, and unlike recent changes in Belgium and France, the Netherlands do not yet have a direct form of judicial review.

Democratic transition and consolidation in Chile are bounded by four important events: 1) constitutional reform under the military culminating in the 1980 Constitution; 2) the transfer of power to a newly elected democratic government in 1990; 3) significant reform of the Constitution in 2005; and 4) the successful transfer of power to an opposition government in 2010. With respect to each of these events, the contribution of the Chilean courts has been minimal. In fact, Ginsburg (Ch. 1 in this volume) classifies Chile as a case of “judicial irrelevance, in which courts play no discernible role, either as guarantors, triggers or consolidators” of democratic transition. It is widely accepted that neither the ordinary courts nor Chile's Constitutional Court, the Tribunal Constitucional (TC), have aggressively played a rights-based role (Couso 2003, 2004, 2005; Hilbink 2007). However, less often explored is the TC's power-distribution role – despite it being a court expressly designed to adjudicate separation of powers conflicts.

Once democracy was reestablished in 1990, political supporters of the former military regime – represented by the Alianza, an alliance of right and center-right parties – formed a formidable opposition to the center-left-governing Concertación coalition, and turned to the courts as one of multiple political strategies to defend the status quo and promote their political agenda. Over the next fifteen years, the TC was called on to interpret and rearticulate the power relationships set out by the authoritarian regime under new political conditions of competitive democracy. Constitutional ambiguity with respect to the relationship between Legislative and Executive authority produced a series of separation-of-powers conflicts. This chapter is concerned with how the TC exercised its assigned functional role of distributing power in these controversies and how (and why) this role evolved.

One of the key insights of research on comparative judicial politics is that judicial power moves in mysterious ways: strong courts sometimes fail to command the obedience of other political actors, and weak courts sometimes compel rulers to obey adverse rulings. Neither the trajectory nor destination of judicial power is set in stone: the de facto power of courts moves in a nonlinear fashion and shrinks as often as it expands (Chavez 2004; Vanberg 2005; Moustafa 2007; Trochev 2008; Staton 2010). As the editors remind us in the Introduction to this book, judges’ internal motivations as well as the external influences on courts interact in complex ways, leading courts to play very different roles. Drawing on judicial experiences in resolving highly contested electoral disputes in three post-Soviet countries (unique occurrences in this region), this chapter provides empirical evidence of this variation.

Georgia, Ukraine, and Kyrgyzstan are the only post-Soviet states that underwent “colored revolutions” – peaceful mass protests against fraudulent national elections that toppled incumbent presidents – between 2003 and 2005 (Wheatley 2005; Wilson 2005; Radnitz 2010). One factor that appears to be of central importance to these conflicts, but that so far has received little attention, is the differing role assumed by the courts in supporting these revolutions. Unexpectedly, the political opposition – in addition to street protests – actively used litigation to expose electoral fraud. Unexpectedly, Supreme Courts – which are staffed with Soviet-era judges – canceled rigged elections, thus opening the way for a peaceful change of government. Also unexpectedly, the incoming governments did not embrace judicial independence, instead pressuring and eventually emasculating judiciaries, a move voters did not seem to resist.

Judging from comments in judicial opinions and academic journals, South Africa's Constitutional Court is held in high esteem around the world. Although this might seem an unsurprising response to the highest court in a post-apartheid South Africa, this chapter argues that the Court's image as well as its judicial authority are the product of a very particular set of conditions and politics and cannot be taken for granted now or in the future. Implicit in this argument is the idea that the Constitutional Court plays a number of different roles that vary over time. In order to understand the evolution of the Constitutional Court and of its roles in the governance of the country, it is important to explore three dimensions of the Court's history and function, which taken together, provide insight into the way in which the courts and judges have entered into national political life, and what difference their participation has made in the construction of constitutional democracy in South Africa. These three dimensions are: (1) the sources of judicial authority; (2) the practice of the judiciary in exercising this authority; and (3) the challenges faced by the court as political conditions shift, and as it is confronted with increasingly difficult cases rooted in seemingly intractable socioeconomic and political conditions.

A puzzle lies at the heart of the excellent treatments of courts in this volume. With important exceptions, it is the absence of a certain kind of politics. In these pages there are the distal politics of parties and dictators, insurgencies and militaries, civil society and religions, unions and the media. Mostly absent, however, are the most proximate politics to courts – the legal occupations which embed, enable, draft, litigate, implement, oppose, critique, and ally with judges and courts, a configuration of occupations captured by the concept of “the legal complex” (Halliday and Karpik 2011).

There has been a tendency in scholarship on courts in general to permit its hermetic segregation from scholarship on other legal occupations – most notably the legal profession, but also legal academics and practicing lawyers within the state or corporations (Feeley 2012). This detachment from courts in their most immediate institutional context contributes to a hollow core theory of judicial politics, a lacuna which does not properly reflect the practices of such politics either in history or in contemporaneous headlines.

One of the fascinating but seldom-explored phenomena in comparative constitutional law is the growing reliance on constitutional courts in the non-secular world to block the spread of religiosity or advance a relatively universalist interpretation of sacred texts. The American constitutional system has successfully maintained a stable secular order in one of the most religious societies in the West. Although the specter of religiosity is haunting Europe once again, European national high courts, from Germany to Britain to France, assumed the role of guardians of secularism against the perceived threat to the concept of a religiously neutral public sphere. Likewise, Turkey's adherence to a strict separation of religion and state (at least until the recent constitutional amendments) has allowed the Turkish Constitutional Court to exclude religious practices, parties, and policies from the purview of Turkey's political sphere. The Supreme Court of India has drawn on the “basic structure” doctrine to maintain and advocate a secularist vision of the Indian Constitution amid a markedly religious setting and increased political presence of Hindu and Muslim religiosity. Its jurisprudence on personal-status law has sounded a clear voice for uniformity and standardization in that domain. In short, despite the many pertinent differences, the constitutional jurisprudence of countries that adhere to a strict separation of religion and state reveals a clear secularist tendency and vision of religion as confined to the private sphere.

A notably harder challenge to the constitutional containment of religion is posed by constitutional orders that defy the Franco-American ideal of separating religion and state along private-public lines. At least 1 billion people now live in polities or subnational units that not only designate a single religion as the “state religion” but also enshrine that religion and its interlocutor as “a” or “the” source of legislation (meaning that legislation must comply with principles of that religion), incorporate religious precepts in law, grant religious tribunals jurisdiction over important aspects of life, public and private, in addition to the tremendous symbolic weight religious edicts often carry. At the same time, religion and its institutions and interpretive hierarchy are expected to comply with overarching constitutional norms and are subject to review by constitutional courts and judges.

Between 1929 and 2000, the legislative and judicial branches of the Mexican government were subordinated to the executive's control. In theory, the separation of powers was recognized by the dominant political party, the Partido Revolucionario Institucional (PRI), as a leading tenet defining the governmental structure. However, in practice, the president limited the powers of the other branches through various constitutional reforms. These institutional reforms effectively restricted the Mexican Supreme Court from properly functioning as arbiter between the presidential and congressional powers, and from protecting fundamental rights. The court system essentially preserved authoritarian rule and the Mexican Supreme Court turned into a passive and unimportant institution. Judges aligned themselves with the executive in an effort to avoid any kind of confrontation. As Domingo (2004) describes, the judiciary responded to the wishes of the executive as expressed through a number of formal and informal pressures and incentives such as political rewards and career incentives.