The American Catholic Church has a long history in health care. At the turn of 19th century, Catholic nuns began developing the United States’ first hospital and health care systems, amassing a high level of professionalization and expertise in the field. The bishops also have a well-established record advocating for health care, stemming back to 1919 with the Bishops’ Program for Social Reconstruction, which called for affordable and comprehensive care, particularly for the poor and vulnerable. Moving into the latter part of the 20th century, the bishops continued to push for health care reform. However, in the aftermath of Roe v. Wade (1973), the American bishops insisted that any reform or form of universal health care be consistent with the Church’s teaching against abortion, contraception, and euthanasia. The bishops were also adamant that health care policy respect religious liberty and freedom of conscience. In 1993, these concerns caused the bishops to pull their support for the Clinton Administration’s Health Security Act, since the bill covered abortion as a medical and pregnancy-related service. The debate over health care in the 1990s served as a precursor for the United States Conference of Catholic Bishops’ (USCCB) opposition to the Obama Administration’s Affordable Care Act (ACA) and the Department of Health and Human Services’ (HHS) contraception mandate. The ACA also highlighted a divide within the Church on health care among religious leaders. For example, progressive female religious leadership organizations, such as the Leadership Conference of Women Religious (LCWR) and their affiliate NETWORK (a Catholic social justice lobby), took a different position than the bishops and supported the ACA, believing it had enough protections against federally funded abortion. Though some argue this divide lead to institutional scrutiny of the sisters affiliated with the LCWR and NETWORK, both the bishops and the nuns have held common ground on lobbying the government for affordable, comprehensive, and universal health care.
Research on constitutional law has come in different waves mirroring the development of states in recent decades. While the decolonization period of the 1960s still kept the old ties of constitutional “families,” comparison based on such ties has become ever less persuasive since the 1980s wave of constitution making following the fall of the Berlin Wall. Research about de facto and de jure constitutional law now tends to embrace institutional details like judicial review powers and procedures of direct democracy. The field of comparative constitutional law is controversial both in methods and substance. It still lacks a consistent framework of comparative tools and is criticized as illegitimate by scholars who insist on the interpretive autonomy within each constitutional system.
Research in the area of fundamental rights has to deal with long-lasting controversies like the constitutionality of the death penalty. Bioethical regulation is another new field where constitutional positions tend to diverge rather than converge. Embryonic stem cell research, therapeutic cloning, pre-implantation genetic diagnosis, and surrogate motherhood are examples from biotechnology and reproductive medicine where constitutional scholars disagree about what, if anything, constitutional law can contribute to provide a basis or limit for regulation. With the worldwide rise of constitutional courts and judicial review, the standards for the interpretation of fundamental rights become more important. Legal scholarship has worked out the differences between the rule-oriented approach associated with Anglo-American legal systems versus the principle-based approach common to continental Europe.
In the aftermath of the third wave of democratization, Latin American courts left behind decades of subservience, conservatism, and irrelevance to become central political players. They now serve as arbiters in struggles between the elected branches, and increasingly affirm fundamental rights. Indeed, some rulings champion highly controversial rights and have huge budgetary implications, sending shock waves across these new democracies. What explains this unprecedented expansion of judicial power? In trying to answer this fundamental question about the functioning of contemporary democracies, scholars of Latin America have developed a truly vibrant and theoretically dynamic body of work, one that makes essential contributions to our knowledge of judicial politics more generally. Some scholars emphasize the importance of formal judicial reforms initiated by politicians, which resulted in more autonomous and politically insulated courts. In so doing, they address a central puzzle in political science: under what conditions are politicians willing to accept limits to their power? Inspired by rational choice theory, other authors zoom in on the dynamics of inter-branch interactions, to arrive at a series of propositions about the type of political environment in which courts are more capable to assert their power. Whereas this approach focuses on the ability of judges to exercise power, a third line of scholarship looks at how ideas about the law and judicial role conceptions affect judges’ willingness to intervene in high-stakes political struggles, championing some values and interests at the expense of others. Finally, more recent work asks whether assertions of judicial power make a difference in terms of rights effectiveness. Understanding the consequences of judicial decisions is essential to establishing the extent to which more assertive courts are actually capable of transforming the world around them.
Nick Sitter and Elisabeth Bakke
Democratic backsliding in European Union (EU) member states is not only a policy challenge for the EU, but also a potential existential crisis. If the EU does too little to deal with member state regimes that go back on their commitments to democracy and the rule of law, this risks undermining the EU from within. On the other hand, if the EU takes drastic action, this might split the EU. This article explores the nature and dynamics of democratic backsliding in EU member states, and analyses the EU’s capacity, policy tools and political will to address the challenge. Empirically it draws on the cases that have promoted serious criticism from the Commission and the European Parliament: Hungary, Poland, and to a lesser extent, Romania. After reviewing the literature and defining backsliding as a gradual, deliberate, but open-ended process of de-democratization, the article analyzes the dynamics of backsliding and the EU’s difficulties in dealing with this challenge to liberal democracy and the rule of law. The Hungarian and Polish populist right’s “illiberal” projects involve centralization of power in the hands of the executive and the party, and limiting the independence of the judiciary, the media and civil society. This has brought both governments into direct confrontation with the European Commission. However, the EU’s track record in managing backsliding crises is at best mixed. This comes down to a combination of limited tools and lack of political will. Ordinary infringement procedures offer a limited toolbox, and the Commission has proven reluctant to use even these tools fully. At the same time, party groups in the European Parliament and many member state governments have been reluctant to criticize one of their own, let alone go down the path of suspending aspect of a states’ EU membership. Hence the EU’s dilemma: it is caught between undermining its own values and cohesion through inaction on one hand, and relegating one or more member states it to a second tier—or even pushing them out altogether—on the other.
On June 26, 2015, the U.S. Supreme Court determined that same-sex couples have the right to marry, and newspapers across the country declared that gay couples could now exercise this right in all 50 states. While the Obergefell decision was an important moment in history and a significant victory for the LGBT movement, it was not an immediate and complete change in policy. Rather, the change emerged slowly over decades from numerous complex interactions among federal, state, and local governmental actors. These same actors continue to influence marriage equality even after the Supreme Court’s historic ruling.
A careful consideration of the path of marriage equality demonstrates the importance of federalism in the evolution of policy in the U.S. context. Not only does the extent of federal involvement influence state decision-making, but state policies also respond to the policymaking processes in other states. Examining the progression of marriage rights for same-sex couples also illustrates how variation in state government institutions shape policy outcomes in the U.S. system. For example, aspects of state courts such as judicial capacity influence the nature of state policy responses on the issue of gay marriage. Finally, focusing on marriage equality provides an opportunity to consider how institutions of government and political actors strategically interact to influence the policymaking process. For example, advocacy coalitions make strategic choices to focus on levels and institutions of government that are more responsive to their interests. Overall, same-sex marriage policy and the scholarship that investigates it highlight the complex and sometimes convoluted development that characterizes the policymaking process on many important issues in American politics and society.
Debate on the future of the European Union (EU) never abates because the Union is a polity characterized by considerable change in its internal and external environment. Scenarios are an important tool in mapping possible futures for the Union as they bring underlying trends into focus. Four scenarios on the future of the EU are presented: disintegration, piecemeal adjustment, functional federalism, and a United States of Europe. The political and policy battle concerning the future of the Union is between scenario piecemeal adjustment, the dominant response to the crisis and to events on Europe’s borders, and functional federalism, defined as more integration but in defined fields. Piecemeal adjustment represents a Union that muddles through, incremental reform, whereas functional federalism represents a Union that garners sufficient political capacity to be more strategic in particular functional areas. Systemic disintegration is regarded as unlikely, but partial disintegration may occur because of the exit of the United Kingdom, challenges to a number of EU regimes, and the threats to the Union’s normative order from some member states. A united states of Europe, is highly unlikely as the member states are not in favor of transforming the Union into a state-like federation. The degree of contestation about the future of the EU precludes a transformation of the system at this juncture. Three intervening factors will have a major impact on the future of the EU: the profound changes in the global environment, turbulent politics in the member states, and the Franco-German relationship as a source of leadership in the Union.
Mikael Rask Madsen and Mikkel Jarle Christensen
Over the past several decades scholars have intensively debated what factors drive globalization. Answers have ranged from the emergence of the information society and the global economy to value-conflicts embedded in different civilizations. A different yet closely related question is who is driving globalization? That is, however, much less studied, even if it is arguably key to making global governance intelligible. A whole list of actors seem to offer possible answers to the question of who the globalizers are: Are they global institutions such as the World Trade Organization (WTO) or the International Criminal Court (ICC); communities of experts providing technocratic solutions; transnational networks of activists seeking to alter global and national politics by pursuing, for example, environmental or human rights agendas; or are they powerful individuals forming transnational elites taking the fate of the global society in their hands at a safe distance from ordinary politics in places such as Brussels, New York, or Davos?
Israeli-European Union (EU) relations have consisted of a number of conflicting trends that have resulted in the emergence of a highly problematic and volatile relationship: one characterized by a strong and ever-increasing network of economic, cultural, and personal ties, yet marked, at the political level, by disappointment, bitterness, and anger. On the one hand, Israel has displayed a genuine desire to strengthen its ties with the EU and to be included as part of the European integration project. On the other hand, Israelis are deeply suspicious of the Union’s policies and are untrusting of the Union’s intentions toward the Israeli-Palestinian conflict and to the Middle East as a whole. As a result, Israel has been determined to minimize the EU’s role in the Middle East peace process (MEPP), and to deny it any direct involvement in the negotiations with the Palestinians. The article summarizes some key developments in Israeli-European Community (EC)/EU relations since 1957: the Israeli (re)turn to Europe in the late 1950s; EC-Israeli economic and trade relations; the 1980 Venice Declaration and the EC/EU involvement in the MEPP; EU-Israeli relations in a regional/Mediterranean context; the question of Israeli settlements’ products entering free of duty to the European Common Market; EU-Israeli relations in the age of the European Neighbourhood Policy (ENP); the failed attempt to upgrade EU-Israeli relations between the years 2007 and 2014; and the Union’s prohibition on EU funding to Israeli entities beyond the 1967 borders. By discussing the history of this uneasy relationship, the article further offers insights into how the EU is actually judged as a global-normative actor by Israelis.
Rebecca Hamlin and Gemma Sala
The judicialization of politics is an expression that has been widely used in the fields of comparative law and judicial politics alike since it first emerged in the 1980s. Yet, despite its ubiquity, it is difficult to ascertain its specific meaning because it is used to refer to such a wide range of court-related phenomena and processes. Despite its varying usages and meanings, there has been a puzzling lack of scholarly discussion over the scope of the term, and very little critical analysis of its use. This silence has impeded the project of comparative constitutional law. So it is necessary to disentangle and compare the many faces of judicialization that are used in various political science literatures. There are as many as nine distinct forms of the term that are regularly used; yet the various empirical strategies for measuring, defining, and documenting this phenomenon are often incommensurable, and further, the causes of judicialization frequently overlap and occasionally contradict one another. The popularity of this term has come at the cost of conceptual clarity, and this confusion has impeded both the project of building a comparative theory of judicialization, and efforts to have a coherent normative debate about its consequences. With the goal of theory building in mind, a systematic study of judicialization and its multiple usages can be a useful way to illuminate key questions for a new research agenda geared toward a deeper and more nuanced understanding of this term.
In a liberal conception of democracy, courts play an important role in facilitating the rule of law by controlling the abidance to rules and by holding the political branches of government accountable. The power of constitutional review is a crucial element for exercising horizontal accountability. Courts across Africa are vested with the power of constitutional review, and, generally speaking, their independence has substantially increased since the beginning of the 1990s—although African courts enjoy overall less independence than the global average for courts’ independence.
Within the African region, the level of judicial independence varies widely, between contexts that rarely allow judicial independence and contexts where courts have more power to challenge the government. Furthermore, across the continent, African courts experience undue interference—which frequently takes place informally. Informal interference can occur through the biased appointments of judges, verbal and physical threats, violent attacks, the payment of bribes, or the ouster of sitting judges. Informal networks—held together by ties based on shared educational trajectories, common leisure activities, religion, kinship relations, or political affiliations—are the channels through which such pressure can be transmitted. Yet judges also can actively build informal networks: namely, with the legal community, civil society, and international donors, so as to insulate themselves against undue interference and to increase institutional legitimacy.
Research has shown that the agency of judges and courts in signaling impartial decision-making, as well as in reaching out to society, is crucial to constructing legitimacy in the African context. In contrast, the explanatory power of electoral competition as an incentive for power holders to support judicial independence is not straightforward in the context of Africa’s political regimes, where the prospect of losing office is associated with financial, and in some cases even physical, insecurity. However, research on judicial politics in Africa is still only preliminary, because the field requires more comparative studies in order to fully reveal the political repercussions on Africa’s judiciaries as well as to delineate the scope conditions of the prominent theories explaining judicial independence.
Land-related disputes and land conflicts are sometimes politicized in elections in African countries, but this is usually not the case. Usually, land-related conflict is highly localized, managed at the micro-political level by neo-customary authorities, and not connected to electoral competition. Why do land conflicts sometimes become entangled in electoral politics, and sometimes “scale up” to become divisive issues in regional and national elections? A key determinant of why and how land disputes become politicized is the nature of the underlying land tenure regime, which varies across space (often by subnational district) within African countries. Under the neo-customary land tenure regimes that prevail in most regions of smallholder agriculture in most African countries, land disputes tend to be “bottled up” in neo-customary land-management processes at the local level. Under the statist land tenure regimes that exist in some districts of many African countries, government agents and officials are directly involved in land allocation and directly implicated in dispute resolution. Under “statist” land tenure institutions, the politicization of land conflict, especially around elections, becomes more likely. Land tenure institutions in African countries define landholders’ relations to each other, the state, and markets. Understanding these institutions, including how they come under pressure and change, goes far in explaining how and where land rights become politicized.
The Commonwealth is the international governmental organization of states that emerged from the British empire, and since 2000 it has emerged as a focus for contestation relating to the regulation of same-sex sexualities, gender diversity, and diverse sex characteristics. Following colonial criminalizations focused on same-sex sexual acts, and later formal decolonizations, there have appeared many national movements for decriminalization and human rights in relation to sexuality and gender. The Commonwealth has emerged as a site of politics for some significant actors claiming human rights in relation to sexual orientation, gender identity and expression, and sex characteristics. This has been led by specific organizations of lesbian, gay, bisexual, and transgender (LGBT) people, increasingly with intersex people and allies, but it is also important to consider this in relation to queer people, understood more broadly here as people in all cultures experiencing forms of sexualities, biological sex and genders outside the social structure of heterosexuality, and its associated sex and gender binaries. A range of forms of activist and non-governmental organization (NGO) engagement have occurred, leading to shifts in Commonwealth civil society and among some state governments. This has required researchers to develop analyses across various scales, from local and national to international and transnational, to interpret institutions and movements.
The British Empire criminalized same-sex sexual acts between males, and to a lesser extent between females, across its territories. In certain instances there were also forms of gender regulation, constraining life outside a gender binary. Such criminalization influenced some of those claiming LGBT human rights to engage the Commonwealth. Research shows that a majority of Commonwealth states continue to criminalize some adult consensual same-sex sexual activity. Yet the history of struggles for decriminalization and human rights within states in the Commonwealth has led up to such recent important decriminalizations as in India and Trinidad and Tobago in 2018.
LGBT and queer activist engagements of the Commonwealth itself commenced in 2007 when Sexual Minorities Uganda and African allies demanded entry to the Commonwealth People’s Space during a Heads of Government meeting in Kampala. Activism has often focused on the biannual Heads of Government meetings that are accompanied by civil society forums. A particularly significant phenomenon has been the emergence of a “new London-based transnational politics of LGBT human rights,” evident in the creation from 2011 of new NGOs working internationally from the United Kingdom. Among these organizations was the Kaleidoscope Trust, which shaped the subsequent formation of The Commonwealth Equality Network as an international network of NGOs that became formally recognized by the Commonwealth. Significant developments occurred at the London Commonwealth Heads of Government meeting in April 2018; Prime Minister Theresa May expressed “regret” for past imperial criminalizations while announcing funding for Kaleidoscope Trust and other UK-based groups to use in international law reform work. These developments exemplify a wider problematic for both activists and analysts, concerning how LGBT and queer movements should engage in contexts that are still structured by imperial legacies and power relations associated with colonialism, persisting in the present.
The expression “the Lisbon Treaty” (LT) is a shortcut to the treaties upon which the European Union (EU) has been based since December 1, 2009. During the “reflection period” that lasted from June 2005 to December 2006 three options were available: remaining with the European treaties as amended by the Nice Treaty; starting new negotiations in order to adopt some changes deemed technically necessary; or trying to get “the substance” of the Constitutional Treaty (CT) of 2004 approved in the form a new treaty. Most member states and the EU institutions were in favor of the third option. The negotiations that led to the adoption of the LT in December 2007 departed from the usual treaty amendment scenarios. The content of the LT is to a large extent similar to that of the CT, as most of the novel provisions of that treaty have been taken over as they were written in the CT and introduced in the existing European Community (EC) and EU treaties. Apart from a few institutional innovations such as the Permanent President of the European Council and the new voting system in the Council, most innovations with regard to the European communities are to be found in the details. The ratification process of the LT was difficult, as it was slowed down by the necessity to hold two referenda in Ireland, and to overcome the resistance of the President of the Czech Republic, an overt Euroskeptic. The negotiations of 2007–2009 shed some light on the importance in EU policy-making and especially in treaty negotiations of the epistemic community of legal experts and, more precisely, of experts in EU law. Events in the years 2010 and 2011 led to minor treaty amendments, shaping the present content of what is usually referred to as the LT. Whether Brexit and the EP elections of 2019 will lead to important changes remains unknown.
Russell H. Kaschula and Michael M. Kretzer
Language policies in sub-Saharan African nations emerge out of specific political, historical, socioeconomic, and linguistic conditions. Education plays a crucial role for all spheres of language policy. Policies either upgrade or downgrade indigenous languages through their application at various educational institutions. The most significant example is the selection of the language(s) used as languages of learning and teaching at higher-education institutions. The region’s colonial history also influences the language policies of the independent African states. Language policy in Senegal is an example of a francophone country focusing on a linguistic assimilation policy in which minor reforms in favor of indigenous languages have taken place. Rwanda’s language policy is unique as the former francophone nation now uses English as an exoglossic language in a type of hybrid language policy. Botswana is an example of an anglophone country that follows a language policy that is dominated by a very close connection to the notion of nation-building through its concentration on a single language, Setswana, alongside English. Tanzania is an anglophone African country whose policy focuses on Kiswahili, which is one of the very few indigenous and endoglossic languages. Kiswahili is broadly used in Tanzanian educational institutions until the tertiary level, but its use as medium of instruction focuses on the primary level. South Africa demonstrates the very close relationship between general political decisions and language policy and vice versa. Language policy decisions are never neutral and are influenced by the politics of a specific country. As a result, individual and societal language attitudes influence language policies. In addition to this, the overt and official language policy on a macro level may differ from the implementation of such policies on a micro level. At the micro level, practice can include covert language practices by various stakeholders.
Charles M. Cameron and Lewis A. Kornhauser
We summarize the formal theoretical literature on Supreme Court decision-making. We focus on two core questions: What does the Supreme Court of the United States do, and how can one model those actions; and, what do the justices of the Supreme Court want, and how can one model those preferences? Given the current state of play in judicial studies, these questions then direct this survey mostly to so-called separation of powers (SOP) models, and to studies of a multi-member (“collegial”) court employing the Supreme Court’s very distinctive and highly unusual voting rule.
The survey makes four main points. First, it sets out a new taxonomy that unifies much of the literature by linking judicial actions, modeling conventions, and the treatment of the status quo. In addition, the taxonomy identifies some models that employ inconsistent assumptions about Supreme Court actions and consequences. Second, the discussion of judicial preferences clarifies the links between judicial actions and judicial preferences. It highlights the relationships between preferences over dispositions, preferences over rules, and preferences over social outcomes. And, it explicates the difference between consequential and expressive preferences. Third, the survey delineates the separate strands of SOP models. It suggests new possibilities for this seemingly well-explored line of inquiry. Fourth, the discussion of voting emphasizes the peculiar characteristics of the Supreme Court’s voting rule. The survey maps the movement from early models that ignored the special features of this rule, to more recent ones that embrace its features and explore the resulting (and unusual) incentive effects.