« Innovation & Equality | Main | The Kansas Abortion Opinion »

Thursday, April 25, 2019

Diversity and Judicial Review

As I've mentioned before, one aspect of my draft paper on Winston Churchill and the Constitution discusses his claim that judicial review is necessary as a society becomes more diverse. In a prior post, I pointed out that Japan, which is among the least diverse major democracies, provides evidence in favor of Churchill's hypothesis in that the Japanese Supreme Court exercises judicial review rarely.

Turning the point around, I tried to think of an example of a Supreme Court in a very diverse nation. The first one that came to mind was India. Turns out that the Indian Supreme Court is among the most aggressive in the world in using judicial review.

The Japanese and Indian examples do not prove that Churchill was correct. But they are interesting starting points for a more thorough analysis.

Posted by Gerard Magliocca on April 25, 2019 at 09:14 PM | Permalink


Very interesting. I think Canada would be an interesting test case. It is one of the most diverse countries in the world but my own (defer to the comparativists) views is that when it comes to judicial review of legislative acts it is much less active.

Posted by: I. Glenn Cohen | Apr 26, 2019 11:59:01 AM

And just to make it absolutely clear:

Not only NGOs.But totally private entities(like individuals ,laymen even )can petition for public remedy concerning certain public issue (to the Supreme court,and directly so).


Posted by: El roam | Apr 26, 2019 5:32:43 AM

In the link ,first is summary or alike,later down there,one may reach the ruling itself( under title of: " judgment " there).


Posted by: El roam | Apr 26, 2019 4:57:37 AM

As I have explained in your previous post, the most important factors are: Rule of law and independent judiciary (strategically).Tactically, is whether private entities ( like NGOs ) can become public petitioners(without suffering concrete injury, like in the US, but petitioning for the sake of the issue and public).

As an example, you can take the Israeli state. The deadliest state in terms of judicial review. One of the reasons for it, is NGOs having the possibility of such legal status as " public petitioner " without having injury for standing.

See link here, to a very renown ruling of the Israeli Supreme court ( judges in US for example, cite it ). The petitioners are among others, public petitioners, having standing, without suffering personal concrete injury as in the US.

So, reach the link, and trace them both as public petitioners:

Public Committee against torture v.Israel, and:

The Association for Civil Rights in Israel v. Israel.



All you need, is to imagine, what would happen in the US, if standing could be reached( in Federal courts )without such personal concrete injury, and understand the issue.Flood of petitions.


Posted by: El roam | Apr 26, 2019 4:53:15 AM

The comments to this entry are closed.