POPULISM, COURTS AND SOCIAL CHANGE
Dr. Martha Gayoye, Keele University School of Law, email@example.com
Can courts be agents of social change amidst popularist attacks on the rule of law and democracy? Constitutional courts are increasingly operating in a geopolitical context where they are undergoing turbulent testing in terms of their relationship with contemporary popularist politics within liberal democracy that may trump minority and marginalised communities. Some three contemporary examples illustrate this judicial turbulence. The US Constitutional Court in 2022 in the case of Roe v Wade in which the Court overturned a1973 ruling that had outlawed anti-abortion legislation, following some popularist upheavals. The second is the role of the Indian Supreme Court in response to Hindu nationalism. The third is the UK Supreme Court's intervention in the politics leading up to BREXIT and the ensuing backlash.
How should this judicial role in response to these contemporary popularist challenges be conceptualised?
Some key concepts that have been explored are the age-old judicial activism, and new concepts such as judicial leadership, and heroic, herculean and towering judges. All these concepts are not without constant debate, as they raise problematic questions around the relationship between the three arms of government, the extent to which courts should engage in public policy, and the relationship between the courts and the demos.