Docket Control and the Success of Constitutional Courts

Abstract

This chapter, an invited contribution to a compendium on comparative constitutional law, argues that giving courts the power of docket control can contribute to their power and success. To make this point, this chapter surveys the experiences of several emerging and established constitutional democracies. Deciding what cases to decide permits a court to issue the right decisions at the right times, what this chapter calls ‘issue timing.’ A court can avoid encountering an issue until the country is ready to discuss the issue, and perhaps ready to resolve the issue in the manner the court is contemplating – or the court can decide to avoid the issue altogether because the issue is too polarizing for the court to encounter. As part of this ‘issue timing’ is what this chapter calls ‘legitimacy timing,’ meaning giving the court the power to decide what to decide allows courts both to initially create and then later maintain their legitimacy, even in situations when political forces might not support the specific outcome ordered by the court. Courts create and maintain their institutional legitimacy by giving political forces and the public time to adjust to a newer style of institution – a judicial institution – deciding leading issues of the day. But there is also a quantitative benefit to docket control, one related to legitimacy timing and the general politics surrounding courts. Giving courts docket control permits them to limit the sheer number of major issues they are deciding, which permits them to avoid excessive political fights, and gives them an agenda control power that allows them to compete on more equitable terms with the other branches of government, which do have agenda control.