Populist Constitutionalism

Populist engagement with constitution-making and constitutional reform forms a distinctive, and in significant ways worrying, tendency. Populism is explicitly present in the constitutional politics of the East-Central European countries of Hungary and Poland (but not reducible to East-Central Europe), and is causing important tensions in the European Union, which proclaims to be grounded in the […]

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Judges Speaking for the People: Judicial Populism beyond Judicial Decisions

We typically think of courts as victims or targets of populist politics, however we define the latter. Staffed by elites appointed by previous governments, high courts are indeed obvious targets for populist leaders on the rise. To preserve their authority against such threats, courts might adjust their decisions to trends in public opinion, or perhaps […]

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Working Well Is The Best Strategy: Judges under Populism

Introduction: foes of all stripes Let’s start with this truism—no administration, populist or not, wants courts meddling with them and checking on their power. Administrations often react to what they see as hostile decisions made by courts. These reactions may take a form that is congenial with political deliberation—courts in a democracy need to be […]

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In Defense of Judicial Populism: Lessons from Colombia

In 2005, the Colombian Constitutional Court upheld an amendment allowing presidential reelection. An extremely popular President elected for the 2002-2006 period, Álvaro Uribe, was behind the reform. The Court’s decision was highly controversial because one of the goals of the 1991 Constitution was to check the powers held by the Colombian President since 1886. For […]

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Populism and the Turkish Constitutional Court: the Game Broker, the Populist and the Popular

Populist strategies have for some time been an integral part of Turkish political life employed dominantly by the right wing political parties.1)For populism as a discursive strategy in Turkey see Zafer Toprak, “Populism ve Türkiye’deki Boyutları”, Tarih ve Demokrasi (Istanbul: Cem Yayınevi, 1992), pp. 41-62; Reşat Kasaba, “Populism and Democracy in Turkey, 1946-1961”, Rules and […]

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Populism and Judicial Backlash in the United States and Europe

Common criticisms of judicial activism stretch from the somewhat outdated but nonetheless repeatedly re-emerging argument of courts’ “counter-majoritarian difficulty”1)Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16 (1962). to the prevalence of disagreement in plural societies concerning the substance and scope of human rights.2) Richard Bellamy, “Rights as […]

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Safeguarding Democratic Institutions

A discussion of courts and populism begs for definitional boundaries.  While courts are generally institutionally confined, the same cannot be said for populism, a political moniker that risks confounding everything from the majoritarian core of democracy to the demagogic claims of tyrants in the making. As difficult as precise definition might be, it is clear […]

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Trapped in the Age of Trump: the American Supreme Court and 21st Century Populism Or

The American Supreme Court is currently ill-equipped to confront populism. The Court’s deficiency is not because of the political balance between justices nominated by Republican Presidents and those nominated by Democrat Presidents. It is a result of a deeper shift in the way the concept of judicial legitimacy is currently understood in the US. In […]

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Courts in a Populist World

“I did not come to in order to be loved but in order to voice the sentiments of the public,” said Minister Miri Regev. Meanwhile, an Opposition Member of Knesset exclaimed that “we are here because we reflect and represent the people.”1)Haim Jelin, Yesh Atid (party), Knesset Session/Sitting (3 August 2016) (our translation; emphasis added). […]

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Populist Constitutionalism and the Democratic Minimum Core

Democratic “populism” is on the rise worldwide. In the last decade, Latin America has seen a wave of populist, neo-Bolivarian political change; Hungary and Poland have seen the election of nationalist parties openly opposed to the European project; and a majority of voters in the UK have voted for Brexit.  In the US, for the […]

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