The dominant theme of European and U.S. politics over the past decade or so has been the rise of populism, left and right. Populists are drawn towards executive power; favor plebiscitary instruments; and tend to distrust parliaments, experts, international institutions, and bureaucratic elites—all in the name of “democracy.”
How do courts—with the arguable exception of central banks, the least democratic, most elitist and internationalist institutions of liberal governments—fit into or fare in this landscape?
The Constitutional Courts of some Eastern European countries, it is widely said, are in danger of being turned into instruments of the Executive. In the United States, the federal judiciary has been dragged into the maelstrom of partisan passions and contentions. The WTO’s adjudicatory institutions have come under fire from populist forces on the right; other arbitral bodies, from the populist Left. Other courts, though—say, the European Court of Justice, or Germany’s Federal Constitutional Court—so far seem to have largely escaped populist wrath, notwithstanding their lack of direct democratic legitimation and their powerful role as governing institutions.
What explains these highly variegated developments? Should we celebrate the relative insulation of judicial tribunals as a last bastion of lawful government—or should we worry about an unaccountable “juristocracy” that will do the bidding of the executive or the work of political factions, populist or elite?
At the Transatlantic Law Forum’s Twelfth Annual Conference, leading scholars, jurists, practitioners, and policy experts from Europe and the United States will examine the role and the operation of judicial tribunals in a deeply polarized, fractious, and turbulent political environment. Panel topics include the changing landscape of rights-centered judicial review; the tensions between courts and a “new nationalism;” the prospects for international commercial arbitration and business law in a changed and charged political environment; judicial recruitment and appointments; the relations between increasingly powerful executives and the judiciary; and the future of judicial independence.
Please contact Stuart Nincehelser at firstname.lastname@example.org for any questions.