In lieu of an abstract, here is a brief excerpt of the content:

1 1 Judicial Community, Judicial Power, and National Politics This book tackles an increasingly controversial issue in the politics of many countries around the world. That is, when, why, and how do national courts begin, systematically, to engage heated political issues? Examples abound of both public support and outrage at the increasing role that courts have played in deeply charged political battles. Domestic and even international clashes over the political role of courts have become commonplace in a world more comfortable with idealizing courts as somehow apart from politics. These have included debates over the jurisdiction of the European Court of Justice to review fundamental decisions of national state governments, as in Irish unease about new constitutional citizenship provisions in the face of the EU Human Rights Charter, or French and British concerns about states’ rights to restrict Muslim veils in secondary schools. The entire world watched as a single national court intervened in the affairs of a wholly separate state: Spain and Chile in the case of Augusto Pinochet. Firestorms have emerged, too, in response to specific decisions of domestic courts, such as the U.S. Supreme Court’s answers to questions of abortion, persistent vegetative states, religious monuments in public spaces, and ethnic or gender representation in university admissions. Equally divisive in some states have been questions about the extrajudicial activities and social associations of justices. U.S. Supreme Court Justice Antonin Scalia received heightened scrutiny at the news of his expense-paid vacations with Vice President Dick Cheney at the very moment the latter was a party in a Supreme Court case. Israeli High Court of Justice President Aharon Barak has been accused by religious critics of tyrannically dominating the Israeli state with the help of like-minded social and legal elites with whom he surrounds himself inside and outside the courtroom. Some have gone so far as to call for a revolution against the secular judges (see, for example, Eilan 1997). These few examples should be sufficient to remind those accustomed to considering other sorts of factors in political analyses—markets and economy , electoral institutions, individual political behavior, culture—that courts and justices have, indeed, become significant actors in the daily politics of many states. I argue that the most important determining factor explaining when, why, and the manner in which national courts enter into the world of divisive politics is found in the intellectual or “judicial communities” with whom justices live, work, and think about the law on a daily basis. Judicial communities are organic communities living and working in close physical proximity to one another;1 they are to be distinguished from epistemic communities or international networks in this regard (Keck and Sikkink 1998; Slaughter 2004). Over the course of decades, judicial communities think and debate about the law through informal as well as formal legal interactions, culminating in new legal norms that may, through court cases, become binding legal principles. Given the right conditions—including, at a minimum, electoral democracy (Schumpeter 1976), basic judicial independence (Russell and O’Brien 2001), and some institutional constraints on courts2 —courts may use these new legal norms as the basis for a jurisprudence that justifies hearing and allows for creative answers to cases involving major issues of national political contention. When courts hear and answer these cases in favor of substantive rights and against administrative powers of the state, courts increase the political salience of the judiciary and thereby enhance judicial power (Hendley 1996; Shamir 1990). In so doing, courts reinforce the conditions that allow them to become critical political actors. In the following pages, I outline my theory of judicial communities and their impact on judicial decision making and judicial power. Judicial communities are informal intellectual communities that affect the ability and willingness of national high courts to enter into decision making on matters of national political contention. Courts that choose to answer questions of national political import, and particularly to challenge administrative authority in favor of individual or civil rights, may express a new type of judicial independence. In contributing intellectual resources over time, legal briefs, and petitions that courts may then act on, judicial communities are critical to the questions of judicial power at the center of work on comparative law and society. Courts, religion, and gender intersect in important ways in the case study offered in this book. And, finally, I outline the link between judicial communities, legal norms, and informal processes as they emerge in this study. 2 Judicial Power and National...

Share