Rethinking Judicialization: Towards a Better Empirical Model

Since World War II, scholarly examination of countries in nearly every corner of the map has discovered the rampant growth of the power of judges and courts. I contend that this growth has been overstated by a tradition of recent scholarship that has at times demonstrated the tendency to brand courts as powerful prematurely. This fundamental error is the result of two chief difficulties. First, we have yet to arrive at a universally accepted definition of judicial power, which, in turn, contributes to the second problem: the inadequate number of reliable and universally applicable metrics of judicial power. The aim of this essay is to introduce a new way of thinking about the power of courts from the first premises—what constitutes power—to our ultimate goal—the models we employ to explain its development. I attempt to accomplish this renovation in two primary ways. First, I introduce a new definition of judicial power that, at its heart, focuses on the persistence of power over time. Second, I present key revisions to the extant judicialization frameworks by merging the prevailing theories into a single hypothesis that emphasizes the development of judicial power as a function of the spread of liberal democracy. Finally, I apply my framework and test empowerment hypotheses in an empirical examination of Mexico.