A fundamental premise of human rights law, and a central concern of constitutional law, is the existence and maintenance of an independent and impartial judiciary. The executive and legislature have a range of powers that are capable of imperilling this independence and impartiality. The exercise of such powers in this manner is often described as engaging in political backlash against, or conducting political attacks on, courts. Political backlash against courts is difficult to define. It involves fine distinctions. A decision to appoint a person to a court on the basis that they will overturn a particular decision might be considered an instance of political backlash, while a decision to appoint a person to a court on the basis that they have a particular approach to deciding constitutional cases might not. And it varies between jurisdictions. Using the judicial appointments process to overturn particular decisions might be considered an instance of political backlash in the UK, but not in the US.
This paper investigates how, as a matter of constitutional theory, instances of political backlash might be identified. It argues that political backlash involves the use of constitutional powers that are not conferred for the purpose of expressing disagreement with the judiciary to, in fact, express disagreement with the judiciary. As constitutional norms determine the purposes for which constitutional powers can be exercised, political backlash against courts requires us to analyse how such norms are created, the process by which they are identified, and which actors are capable of altering them.
Dr Scott Stephenson is a Research Visitor at the Bonavero Institute of Human Rights and a Senior Lecturer at Melbourne Law School, The University of Melbourne.
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