Book Review: Benjamin Bricker, Visions of Judicial Review: A Comparative Examination of Courts and Policy in Democracies
| Published date | 01 August 2021 |
| Date | 01 August 2021 |
| DOI | 10.1177/1478929920971971 |
| Author | Etienne Hanelt |
| Subject Matter | Commissioned Book Reviews |
Political Studies Review
2021, Vol. 19(3) NP21 –NP22
journals.sagepub.com/home/psrev
Commissioned Book Review
971971PSW0010.1177/1478929920971971Political Studies ReviewCommissioned Book Review
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Commissioned Book Review
Visions of Judicial Review: A Comparative
Examination of Courts and Policy in
Democracies by Benjamin Bricker.
Colchester: ECPR Press, 2016. 188 pp., £30.00
(pbk), ISBN 9781785521478.
When unelected judges strike down legislation
that a democratically elected parliament
passed, this creates a problem for democratic
theorists, which has been extensively discussed
under the headline of the ‘counter-majoritarian
difficulty’. Political scientists in the United
States have sought to resolve the problem by
pointing to evidence that judicial review, in
practice, is often majoritarian, as courts tend to
stay in step with public preferences. But is this
the case in Central Eastern European (CEE)
countries as well? In his monograph, Benjamin
Bricker discusses three ‘visions’ that could rec-
oncile judicial review with democratic theory.
He tests these visions empirically in four coun-
tries, which have rarely occupied the spotlight
of the international literature: the Czech
Republic, Latvia, Poland and Slovenia.
Following the introduction, Bricker devel-
ops his three ‘visions’ from the (predominantly
American) literature. The majoritarian vision
resolves the problem by stating that the actions
of courts advance majority interests. Bricker
subdivides this vision further to discuss the
role of the preferences of the median judge in
relation to the legislature’s, the salience of pub-
lic support for the court and career incentives
that judges face. This can be contrasted with
the second vision: the liberal or rights-protect-
ing vision sees the role of constitutional courts
in their ability to enforce constitutional limits
onto the government to protect the rights of
citizens. Finally, the legalist vision, which is
most popular in the legal academy, expects
impartial judges to observe the law and behave
as neutral umpires that adjudicate conflicts
using legal doctrine without advancing own
policy-preferences.
In chapter 3, Bricker provides the reader
with context to his four case studies. This is
particularly important as few readers will be
familiar with the history, political structure and
legal procedures in the four countries. The
obvious question the reader will ask is why
Bricker selected the four cases he did. While
the four cases have received relatively little
attention to date, the unusual selection would
have warranted a more detailed discussion.
A challenge for Bricker’s study is to devise
tests from the American literature, but adapt
them to the CEE context. He does this skilfully,
but a few caveats should be added. First, lim-
ited data means that Bricker did run several of
his tests only on subsets of data. For example,
public support for the Constitutional Court data
was restricted to Poland between 2003 and
2010. Second, in chapter 7, Bricker uses a left–
right measure which only captures some of the
cleavages of parties in Poland. This leads him
to group very much opposite parties such as
‘Law and Justice’ (PiS) – which, on an eco-
nomic dimension, is left to the centre, but
socially very conservative – and ‘Civic
Platform’ (PO) – an economically right, but
socially liberal party – together in some of his
tests. The one-dimensional left–right axis
masks ideological distance between the parties,
whereas the GAL-TAN dimension might have
been more salient or could have produced dif-
ferent insights if used also. In the same chapter,
Bricker uses additional evidence from inter-
views with staff and judges at the Polish
Constitutional Tribunal. While this has
informed the design of his hypothesis tests,
Bricker has passed on the opportunity to use
interviews as a source of inferential leverage.
Overall, Bricker finds ample support for the
majoritarian vision of judicial review. The con-
stitutional courts tend to strike down legisla-
tion produced by oversized coalitions which
are far from the median legislator or voter.
They become more activist when equipped
with solid public support and tend to strike
down legislation produced by ideologically
distant governments. Younger judges also
respond to career incentives which lead them
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