Is Judicial Philosophy Melting into Bare Knuckles Politics?

Abstract In recent times, a crisis confronting constitutional adjudication has spread to various parts of the world. In several cases, this crisis is directly linked to turns to right-wing populism and illiberalism, whereas in others it arises in the context of an ongoing liberal constitutional setting. As attacks on judicial settling of contested constitutional issues have long endured, the question becomes whether this most recent crisis is veritably different or merely a variant in the quest against systemic “juridification.” Starting in the second half of the twentieth century there has been an expansion of the constitutionalization of politics with a corresponding politicization of the constitution. Does that irremediably blur the boundary between adjudication and politics? And are populist and illiberal conceptions of adjudication thus reducible to stark differences in political agendas? Based on the thesis that principled differences can be drawn between ordinary politics and judicial politics (or judicial philosophy), this article maintains that law and adjudication operate within a “language game” that remains distinct from that of ordinary politics. Consistent with this, a further distinction can be drawn between judicial politics “in substance” or based on a plurality of cogent judicial philosophies and judicial politics “in form” or using the language of law but animated by ordinary politics. By drawing on developments and cases in four different countries, Hungary and Poland under illiberal and populist rule, and Israel and the United States where liberal constitutional traditions have come under increasing stress, the article seeks to sort out the meaningful differences between liberal and illiberal or populist adjudication. The article concludes that except when populists and illiberals revert to patently unconstitutional means, they make use of the tools that generally animate the dynamic between judicial and ordinary politics. That said, overall populism and illiberalism’s approach to constitutional adjudication emerges as significantly different than what has preceded it within the confines of liberalism.