Questions: Judicial Systems and Constitutional Review

Question 1

A country has a constitution with explicit provisions for judicial tenure, salary protection, and an independent appointment process for judges. Yet political scientists consistently rate it among the least independent judiciaries in the region. What best explains this gap?

• A. The constitutional provisions must themselves be unconstitutional under a higher legal norm
• B. De facto independence often diverges sharply from de jure independence; appointment processes packed with loyalists, political culture, and career consequences for non-compliance can undermine formal protections entirely
• C. Judicial independence is structurally impossible in any presidential system
• D. Long judicial tenure inevitably reduces independence because judges lose accountability to elected branches

Answer: (B)

De jure independence is the legal framework — tenure, salary protection, removal procedures. De facto independence is whether judges actually rule without political pressure shaping outcomes. Formal protections can be hollowed out through appointments that select loyalists, through threats to court size or jurisdiction, or through informal norms that reward compliance. This gap explains why constitutional democratic backsliding often proceeds through formally legal mechanisms: the constitution is intact while its enforcement is captured.

Question 2

What is the key structural difference between the American (decentralized) and Kelsenian (centralized) models of constitutional review?

• A. The American model restricts constitutional review to criminal cases; the Kelsenian model applies to civil and administrative law
• B. In the American model, any court can refuse to apply unconstitutional law in any case before it; in the Kelsenian model, only a specialized constitutional court holds this power, often through abstract review before laws take effect
• C. The American model requires legislative approval to give constitutional rulings binding force; the Kelsenian model allows courts to act unilaterally
• D. The Kelsenian model applies exclusively to federal systems with multiple levels of government

Answer: (B)

The American model, originating in Marbury v. Madison (1803), disperses constitutional review — any litigant can raise a constitutional challenge in any proceeding, with appellate courts reviewing up to the Supreme Court. The Kelsenian model, influential throughout Europe, concentrates this power in a single specialized Constitutional Court with exclusive authority. The Kelsenian court often performs abstract review — examining laws for constitutionality before they take full effect — making it a direct participant in the legislative process rather than a passive resolver of disputes.

Question 3

Courts that exercise constitutional review inevitably make politically significant decisions, even when judges aim for restraint and are genuinely independent from political pressure.

• T. True
• F. False

Answer: True

Constitutional texts are written in general language and must be applied to situations their drafters never anticipated. The act of interpretation always involves choices — about what the text means, whose interests it protects, how to balance competing values. These choices have political consequences regardless of the judge's intent. Judicial restraint and judicial activism are different philosophies about how to make these unavoidable choices, not a choice between making political decisions and not making them. Independence means freedom from *external* pressure, not freedom from the inherently political nature of constitutional interpretation.

Question 4

Constitutional review — the power to strike down legislation as unconstitutional — is a standard feature of most modern democracies.

• T. True
• F. False

Answer: False

This is a common misconception, particularly for students familiar only with the US model. The United Kingdom, New Zealand, and several other established parliamentary democracies operate under the principle of parliamentary supremacy: the legislature's enactments are the highest legal authority, and courts cannot invalidate them. The UK Supreme Court can declare legislation incompatible with human rights conventions but cannot strike it down. This reflects a different democratic theory — that elected legislatures, not unelected judges, should be the final arbiters of what the law should be.

Question 5

Why is the distinction between de jure and de facto judicial independence essential for understanding how constitutional courts actually function across different political systems?

Model answer: De jure independence is the formal legal structure — tenure, salary protection, removal procedures — that is supposed to insulate judges from political influence. De facto independence is the actual degree to which judges rule without their decisions being shaped by political pressure, career consequences, or institutional incentives to comply with official preferences. The two frequently diverge: a court may have excellent formal protections but be populated through appointment processes that select for political loyalty, or operate in a political culture where non-compliant rulings trigger threats to court size or jurisdiction. Conversely, courts in systems with weaker formal protections sometimes develop strong norms of independence. Understanding this gap explains contemporary democratic backsliding — constitutional courts in formally democratic systems can become instruments of partisan control while every formal protection technically remains in place.

The practical implication is that evaluating a judicial system requires both legal analysis (what do the formal rules say?) and comparative political science (do those rules actually produce independent behavior?). Measuring de facto independence requires looking at ruling patterns, appointment processes, responses to unfavorable decisions by political actors, and the broader political environment — not just reading the constitution.