Work

Judicial Populism: A Conceptual and Normative Inquiry

Year: 2024

Type: article

Abstract: A growing number of analysts use the term ‘judicial populism’ to refer to judicial behavior they find problematic, but they apply it to divergent phenomena and find it objectionable for different reasons. What, then, is judicial populism and when and why should it be of concern? Taking a deductive approach, I argue that judicial populism is best understood as a performance/discursive style, analytically distinct from judicial activism. Like judicial activism, it is a gradational concept, and both populism and activism may present in judicial behavior to different degrees and in different combinations. To illustrate, I develop a grid matrix with an X-axis that runs from maximal restraint/deference to maximal creativity/dominance in the content of judicial rulings (the “what”) and a Y-axis that runs from maximally removed and technocratic to maximally proximate and publicly oriented in the performance or communication of the judicial role (the “how”). This two-dimensional framework enables nuanced comparison of judicial behavior in disparate times, places, and issue areas, illuminating relative variations and trends therein. It also helps to illustrate that, from a pluralist and deliberative democratic perspective, it is not judicial populism per se that should trouble democrats, but, rather, populist behavior taken to extremes.

Source: Law & Social Inquiry

DOI: 10.1017/lsi.2024.47

Author: Lisa Hilbink

Institution: University of Minnesota

Language: English

Topic: Judicial and Constitutional Studies

Subfield: Law

Field: Social Sciences

Domain: Social Sciences

SDG: Peace, justice, and strong institutions

Open Access status: hybrid

Estimated APC paid: $3,450