Much recent work has focused on the ways in which liberal democratic constitutionalism can be eroded from within, including by manipulating law and the tools of constitutional change. Courts are often seen as an indispensable protection for a democratic constitutional order, and there are indeed examples of courts guarding against abusive forms of constitutional and legal change. However, in other recent cases courts themselves have affirmatively aided would-be authoritarian actors in undermining the liberal democratic order.
This is a phenomenon that we call abusive judicial review. This article seeks to define the phenomenon and develop a typology of its different forms. It also gives a number of examples of its use from across different regions and explains its recent importance in comparative constitutional law. Finally, it discusses possible political and legal solutions to the problem.
This paper is co-authored by Professor David Landau.