Our understanding of cross-border judicial dialogue is dominated by the Global North, especially the analysis of the European judicial space, which has limited application outside Europe, and ‘global judicial dialogue’, which is a rather asymmetric phenomenon: Global South courts such as the South African and Colombian constitutional courts cite totemic Western courts such as the US and German courts with far greater frequency than vice versa. This chapter seeks to enhance our understanding of judicial dialogue from the African and Latin American perspectives, nuancing what dialogue means in Global South contexts by comparing the different patterns and facilitating conditions in these regions, including the impact of shared languages and legal traditions, the development of regional integration projects, and pan-regional democratic development. It is argued that leading national courts play highly significant roles in fostering intra-regional dialogue but can also hamper such dialogue by prioritising global extra-regional interlocutors in their citation practices and reproducing global dynamics through asymmetric citation patterns at the intra-regional level. While this pattern highlights the difficulty of de-centring and challenging Global North epistemic dominance in the arena of judicial dialogue, it also suggests that considered changes in judicial, practitioner, and scholarly practice and collaboration can disrupt these dynamics and generate more inclusive dialogue.

This chapter examines the scope of federal judicial power. Chapter III of the Australian Constitution sets out a comprehensive regime for the exercise of federal judicial power. This means that federal judicial power can be exercised only in the way prescribed by Chapter III. There is no comprehensive definition of ‘judicial power’, although there are some functions that are always judicial in nature and some functions that are never judicial in nature. Federal jurisdiction – that is, the exercise of federal judicial power – is limited to the subject-matters set out sections 75 and 76 of the Constitution and also limited to ‘matters’ respecting those subject-matters.

This chapter traces judicial decision making under the Human Rights Act 1998, examining how courts approach their tasks of interpreting legislation compatibly with rights, on the one hand, or, if that is not possible, making a declaration of incompatibility instead. Though the declaration of incompatibility is not legally binding on the Government and Parliament, this chapter uncovers ’the hidden strengths of weak-form review’, highlighting the multiple ways in which declarations of incompatibility tie the hands of the political branches of government. It concludes that declarations of incompatibility are not aptly portrayed as opening gambits in a constitutional conversation, as dialogue scholars would lead us to believe. Instead, they are authoritative decisions in a collaborative constitutional scheme, where judicial determinations of the higher courts that legislation violates rights are entitled to constitutional comity and respect. It concludes by noting the current trend towards ’autochthonous constitutionalism’ under the common law, in preference to litigation under the HRA.

Modern human rights instruments reflect earlier transformations of natural rights into constitutional rights. The effect of this transformation was most apparent in the intertwining of natural rights with emerging conceptions of the separation of governmental powers. For this to take place, early modern natural law theory needed to abandon its defence of absolutist forms of government and embrace ideas developed within the common law. This chapter traces the progress of this surprising marriage. It shows how the concern of common lawyers to secure freedom under law by separating governmental powers came to be justified increasingly in terms of natural law, rather than by reference to English constitutional history. This discursive shift was given political expression in the American revolution and finally adopted into Immanuel Kant’s natural law theory as a requirement of practical reason. The essentially collaborative understanding of the relationship between legislature and judiciary which emerged is still of value in the debate between modern-day natural law theorists over the role of judicial power in the protection of human rights.

Scholars frequently distinguish between “hard” and “soft” forms of judicial review: “hard” review gives courts the final say on constitutional questions, while “soft” review attempts to strike a balance between judicial and legislative supremacy by giving the legislature the ability to override or set aside what the courts have done. By itself, however, the hard/soft distinction captures neither the degree of finality nor the ultimate impact of judicial review. On the one hand, even in systems of nominally hard review, the government usually retains the ability to effectively override the courts via constitutional amendment. On the other hand, a small but growing number of courts – the Taiwanese Constitutional Court among them – have claimed the power to invalidate constitutional amendments as unconstitutional. Using Taiwan as illustration, this chapter highlights three factors that must be considered in evaluating the extent to which courts have the last word on constitutional matters. First is the formal legal effect of the decision (for example, whether a decision has suspended effect or is valid inter partes rather than erga omnes). Second is the ease with which judicial decisions can be formally overridden or set aside (as in the form of legislative override or constitutional amendment). Third is the extent to which judicial decisions require cooperation and implementation by other institutions of government in order to have practical effect.

The Brexit process has been characterised by hyper-litigation – an unprecedented level of strategic litigation brought to influence the process, substance and/or the politics of the UK’s departure from the European Union. Although strategic litigation is by no means unknown in the UK context, we argue that the volume, and unusual degree of success, of Brexit-related litigation may represent a further step change in the use of strategic litigation in the UK constitutional context.

In this chapter, we catalogue more than 50 instances of Brexit-related strategic litigation in the UK, EU and other European courts, up until the date of the UK’s departure from the EU on 31 January 2020. We analyse, first, by whom, about what, and with what aims cases were brought. Secondly, we discuss the impacts of the litigation, both in legal terms – seeking to identify why some cases succeeded where others did not – and in terms of their broader political effects. Thirdly, we try to account for hyper-litigation, identifying the various factors encouraging resort to the courts. Finally, we consider the likely long-term impacts of Brexit-related strategic litigation, and the potential for backlash against politically-motivated litigation by both political actors and the courts themselves.

Australia has a uniquely developed constitutional discourse as to the nature of judicial power. However, this focus on constitutionality has at times tended to obscure a deeper reflection on the underlying concept of the scope of the judicial role. This approach elevates the permissible over the ideal.

It is against this context that this chapter presents a systematic and coherent articulation of the judicial function as a conceptual, rather than constitutional, inquiry. It argues that this function involves a unique institutional blend of dispute resolution and social governance. In the current Australian judicial environment, with its particular focus on efficiency and ‘collegiality’, this explicit recognition of the dualist nature of the judicial role is controversial but critical.

The chapter develops a taxonomy for the systematic characterisation of dispute resolution methods generally, which clearly delineates the judicial form of dispute resolution. It outlines how dispute resolution mechanisms can operate as tools of social governance and explores specifically how the judiciary operates s such an institution. The expansive articulation of function set out in this chapter invites a critical reflection of the limits, constraints, and purposes of the judicial role. The chapter concludes by exploring how this approach may better inform a number of issues facing the contemporary Australian judiciary

This chapter examines Justice Manuel José Cepeda’s role as a towering justice on the Colombian Constitutional Court, arguing that he represents a particular type of impactful judge, i.e., a political-legal institution-builder. His core attributes have been a fusion of jurisprudential pragmatism and political skill, which he used over time to increase the power of the institution. These attributes focused Cepeda on issues that were otherwise undeveloped in the Court’s jurisprudence. For example, he paid close attention to the design of remedies, and perhaps his greatest contribution to the Court’s work were the monitoring mechanisms that he developed for mega-interventions dealing with internally displaced persons and health. Moreover, he constructed interventions in ways that built up political support for the Court while dampening the opposition that normally accompanies activism. His fusion of political and legal skill in protecting and increasing judicial power is seen from the standpoint of his entire career: as a young lawyer involved in designing the Court through the 1991 Constitution, as a justice on the Court itself, and as an adviser and academic after his term ended.

This chapter develops the socialist model of individual judicial powers, which is characterized by the institutionalization of individual judicial powers. One of the instrumental functions of court design in the socialist state of Vietnam is to make sure that the judiciary is under the control of the government and the Communist Party, which can be achieved by empowering the chief justice and placing them under their control. The chief justice in Vietnam, therefore, becomes towering not because of their jurisprudential excellence but because of the institutional arrangement. The judicial institutional design in this socialist state naturally results in a towering chief justice. The socialist model of individual judicial powers is exemplified by the case of policeman-turned-chief justice Truong Hoa Binh.

Chapter 8 concludes with a summary and synthesis of the book’s findings. It discusses the book’s implications for theories of public support for courts, and situates the book within the broader literature on public opinion and political institutions. The chapter anticipates and responds to criticisms of the book’s theoretical and empirical sections, and explores broader implications for the Court’s independence and power within the American political system.

Chapter 1 sets the scholarly and popular context for explaining how citizens evaluate the United States Supreme Court. It conceptualizes the core outcome of interest throughout the book: public support for Court-curbing, or alterations to the Supreme Court’s powers, structures, and institutional arrangements. We compare this concept to judicial independence and judicial power, and we distinguish it from institutional legitimacy. Chapter 1 also makes important connections to the institutions literature, explaining how a politicized foundation to Court-curbing represents a constraint on judicial independence. We characterize core debates in the scholarly literature centering on “policy (or outcome) versus process.” Policy-based perspectives posit that citizen agreement or disagreement with the Court’s rulings or policy direction will influence support for Court-curbing. Process-based perspectives suggest that non-policy factors such as democratic values, perceptions that the Court is fair and impartial (as opposed to politicized), and knowledge and awareness (via a “positivity bias”) all serve to enhance institutional support for the Court.

In Chapter 6, I argue that regional human rights courts are more likely to deter future human rights abuses when the executive is willing to adopt, administer, monitor, and enforce human rights policy as a result of elite pressure. I argue that there are two types of elites important for generating executive willingness: economic elites and political elites. With respect to economic elites, I show that the executive is more willing to adopt, administer, monitor, and enforce human rights policy following an adverse judgment when the state is vulnerable to a loss of economic benefits, like foreign direct investment. With respect to political elites, I argue that the executive is more likely to adopt comprehensive human rights policy in expectation of national judicial or legislative implementation. I find evidence that national judicial implementation and subsequently executive human rights policy change, is more likely when the national judiciary is powerful. I argue that national legislative implementation of adverse regional court judgments is more likely as the size of the legislative opposition grows. I find limited support for the role of the size of the legislative opposition, and I suggest this may be due to key institutional design features of the legislature.

In this final chapter, I trace out the implications of the deliberative partnership thesis for our understanding of judicial behavior, judicial power, and the development of legal rights. I speculate on a model of constitutional development that recognizes the appropriate role of political parties in legal development. I also offer a defense of partisan influence on constitutional interpretation as a more accurate safeguard of a community's self-governing, egalitarian commitments.