Abusive Judicial Review

Abstract

This chapter explains the concept of abusive judicial review: the use of courts by regimes to achieve anti-democratic constitutional change. Abusive judicial review involves abusive constitutional borrowing in two distinct senses: first, regimes lean on captured or cowed courts as a strategy to legitimate or advance authoritarian goals, and second, those courts often draw upon liberal democratic doctrines in abusive ways. It develops a typology of two different forms of the phenomenon—a weak form where courts uphold authoritarian moves by political actors, and a strong form where they act more directly to remove obstacles to authoritarian programs. Finally, it draws out two main examples: the Venezuelan Supreme Court’s repression of the opposition-held legislature using a doctrine of ‘legislative omission’ and other tools, and the wielding of militant democracy doctrines by the Cambodian and Thai apex courts to ban parties for authoritarian ends.