This special issue explores the range of meanings attributed to the terms ‘judicial activism’ and ‘populism’, and, in the context of contemporary case law and political examples, examines the potential interplay between these two phenomena. The central questions asked in this special issue are (a) To what extent and how populism – whether of the left or the right-impacts judicial decision-making; (b) what are the implications of populist movements for existing or possible democratic institutions, policies and processes and (c) what are the implications of populism for the integrity, independence and role of the judiciary in a democratic society where the particular brand of prevalent populism promotes anti-democratic perspectives. The papers included in this special issue consider the above issues in various socio-cultural contexts bringing a unique international perspective to the ultimate issue as to whether and in what ways certain populist initiatives may be and continue to be a threat to democratic foundational values and principles.
Here follows a very brief introduction to each of the papers included in the special issue in the order in which the papers appear:
The impact of populism on constitutional interpretation in the EU Member States by Zoltán Szente and Fruzsina Gardos-Orosz explores how populist politics may impact purported constitutional interpretations serving or even counteracting the political objectives of populists.
The Instrumental Abuse of Constitutional Courts: How Populists Can Use Constitutional Courts against the Opposition by Michal Kovalcik explores so-called ‘constitutional populism’ and the various strategies that have at times been employed by particular segments of the populist activist contingent to undermine the opposition and the independence of the constitutional courts.
De-Judicialization of Politics in the Era of Populism: Lessons from Central and Eastern Europe by Jan Petrov examines what the author characterises as the politicisation of the constitutional courts relying on examples from Central and Eastern Europe of what the author terms ‘authoritarian populism’
Authoritarian Populism, Conceptions of Democracy and the Hungarian Constitutional Court: the case of political participation by Max Steuer examines the Hungarian Constitutional Court's decisions at pivotal periods in responding to populist petitions to the court that advocated an illiberal interpretation of democracy as grounded on unrestrained majoritarian positions.
Through selective activism towards greater resilience: The Czech Constitutional Court’s interventions into high politics in the age of populism by Hubert Smekal, Jaroslav Benák and Ladislav Vyhnánek argues that sound institutional design and selective activism in judging on political process and separation of powers may boost the resilience of constitutional courts faced with a populist challenge.
Judicial activism, populism and counterterrorism legislation in Kenya: Coalition for Reform and Democracy (CORD) & 2 others v Republic of Kenya & 10 others [2015] by Oscar G. Mwangi examines the relationship between populism and judicial activism in a key 2015 Kenyan High Court decision concerning Kenya’s omnibus Security Laws (Amendment) Act, No 19 and the implications of the case for the independence of the Kenyan courts.
Pandemic and the Community’s Sense of Justice through suo motu in India by Tarun Arora explores the Supreme Court of India's judicial response to issues arising in connection with the COVID-19 Pandemic and examines the Court's role through suo motu proceedings.
Abortion, same-sex marriage, and gender identity during the Pink Tide: Venezuela compared to Latin American trends by Victor Molina examines the contrasts between Venezuela and certain other Latin American countries in terms of the impact of certain forms of populism on the left leaning Executive’s willingness to advance reproductive rights and the basic human rights of women and the LGBT community.
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Sonja Grover
Sonja Grover is a Full Professor with the Faculty of Education, Lakehead University, Ontario, Canada. She graduated with a PhD from University of Toronto and has devoted more than 20 years to law research publishing numerous law books and also extensively in peer reviewed international law journals. Dr. Grover is an Associate Editor of the International Journal of Human Rights.