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Hastings International and Comparative Law Review

Authors

Iddo Porat

Abstract

Polarization is on the rise around the globe. Political views are driven to the poles, and moderate views are weakened. Many studies have been carried out on the increase in social and political polarization, but far fewer on the effects of polarization on constitutional and supreme courts, and none on a comparative or global scale. This Article attempts to fill this gap. It aims, for the first time, to describe and typologize the effects of political polarization on constitutional and supreme courts in different parts of the world.

The Article identifies three models of such effects: mirror polarization (the U.S.) - in which the court mirrors the political division in society; onesided polarization (the UK and Westminster model countries) - in which the court reflects one side of the political divide more than the other; and cracks in consensus-based nomination processes (Continental Europe) - in which the rise of fringe parties is challenging the consensus-based nomination of constitutional judges.

The Article concludes that Westminster model countries are shifting from one-sided to mirror court polarization, while the U.S. is witnessing a shift in the opposite direction – from mirror to one-side polarization. Except for recent cases, Europe’s constitutional courts are surprisingly immune from the effects of polarization.

For the U.S. – currently experiencing one of the most severe crises in the history of its Court – this study could provide an important comparative perspective and possible examples for emulation. For non-U.S. audiences, it can provide a way of comparing one’s system to the extreme level of court polarization in the U.S. and situating it to other systems.

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