Judicial Politicization

Judges, who resolve disputes based on legal norms, in some sense also act politically. They participate in the political function of rule application. Because judges must exercise discretion, they are invariably involved in policy making: They have to make “judgments of social benefit” (Feeley and Rubin 1998: 338) at least in part based on their policy values. Such judicial policy making is at the root of the contemporary phenomenon of the judicialization of politics, which is characterized by the expansion of judicial power in the political system.

There are several categories of judicial politicization. First, politicization exists when the policy orientation of judges reflects political party alignments. Second, less politicization occurs when judges simply follow broad legal or political (but not party) doctrines. Third, strong politicization ...