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29 Duke J. Comp. & Int'l L. 1 (2018-2019)

handle is hein.journals/djcil29 and id is 1 raw text is: WHAT MAKES FOR MORE OR LESS POWERFUL CONSTITUTIONAL COURTS? STEPHEN GARDBAUM* It is sometimes suggested that one or another constitutional or supreme court (for example, the US., Indian, or German) is the most powerful in the world. And yet it is often far from clear what the measure ofpower is or should be, what the sources of judicial power are under the given measure, and what explains why some courts are more powerful than others. Is strength mostly a function offormalpowers, so that, for example, a court with the authority to invalidate a constitutional amendment on substantive grounds is ipso facto more powerful than one that may only invalidate statutes, which in turn is more powerful than a court that can do neither? Yet, both the US. and Japanese supreme courts are in this middle category; indeed they have roughly similar sets of legal powers overall, but while the former is often considered among the most powerful courts in the world, the latter is often considered among the weakest. Thus, it seems clear that formal powers do not tell the whole story, but what part do they play, ifany, and what else helps to fill in the picture? Although looking to how courts actually use their legal powers is obviously also relevant, it too falls short. For what we are additionally in search of are factors that help to explain why, for example, the US. and Japanese courts use their powers in such different ways. This Article seeks to shed light on all three parts of the uncertainty: the measure; sources; and explanation ofjudicial power. It begins by proposing that the proper measure of the power of a constitutional court is its consequential nature as an institutional actor in terms of affecting the outcomes of important constitutional and political issues. Although more diffuse and harder to quantify, this conception of judicial power is more Copyright C 2018 Stephen Gardbaum * MacArthur Foundation Professor of International Justice & Human Rights, UCLA School of Law. Earlier versions of this article were presented at the International Society of Public Law's 2017 Annual Conference in Copenhagen, the Universidad Extemado de Colombia, and the Colombian Constitutional Court. Many thanks to ICON-S co-panelists Rosalind Dixon, Aileen Kavanagh, and Mark Tushnet, to Justice Carlos Bernal Pulido, as well as to audience members, for extremely helpful comments and questions. I

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