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Critical Dialogue
In the United States, the borderline obsessive academic focus with judicial independence as a political science concept would lead one to believe that judicial independence as an empirical political reality is persistently endangered. And yet, periodic partisan apoplexy about controversial Supreme Court decisions notwithstanding, it is anything but: Even with judicial potency in polities as disparate as Israel, India, and Germany, the American judiciary remains perhaps the most powerful and most stable in the world. But with all due respect to John Locke, all the world is emphatically not America. Elsewhere, of course, there are locales where the climate surrounding law and courts is rather different, where judicial independence is inconsistent, threatened, or downright fictitious. It is in the study of these nations that judicial independence deserves the central place in public law scholarship it already occupies in America. And with the publication of Maria Popova's Politicized Justice in Emerging Democracies, students of at least two sets of those nations--post-Soviet states specifically and emerging democracies more generally--have both a clarion call for what they could be studying and a first-rate example of how they could be studying it.
Taking as her starting point the fact that citizens universally desire (and scholars universally praise) the rule of law yet not all nations possess it, Popova orients her book around a series of related queries. Why is the rule of law so hard to establish in postauthoritarian regimes? Why do independent courts--integral as they are to the rule of law--rarely exist outside of established democratic politics? What forces encourage or impede the development of such courts? At the heart of Popova's answers to these substantial questions is her "strategic pressure theory": the idea that in emerging democracies, political competition "hinders rather than promotes the maintenance of independent courts" (p. 3, emphasis original). In such regimes, she hypothesizes--and then supports through both quantitative and qualitative analysis of judicial output in post-Soviet Russia and Ukraine from 1998 to 2004--political competition functions rather differently than it does in consolidated democracies, providing incentives for electorally vulnerable political incumbents to meddle in judicial affairs and ultimately leading to "the politicization of justice, the subordination of courts to the executive, and the failure...