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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.


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