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This chapter examines what judges can do inside the courtroom to promote democratic norms amid authoritarian pressure. It proposes a two-step adjudicative framework – that of “Sustainable Democratic Adjudication,” which allows judges to systematically incorporate both constitutional legal principles and judicial strategies. Under step one, judges need to form an initial view on what the law requires under the democracy-orienting approach proposed in Chapter 4. During this step, they must apply a presumption of “institutional blindfold,” ignoring the possible influence of prudential considerations. This book terms the tentative conclusion reached at this stage the “formal legal position.” The second step involves judges lifting the blindfold to check whether, and if so how, the formal legal position should be supplemented with or adjusted by strategic considerations. These are questions determined by the level of risk incurred by maintaining the formal legal position. The chapter also examines the strategies in relation to outcome, reasoning, language, and timing that judges can deploy during the adjudicative process.
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