The Judicialization of (Separation of Powers) Politics: Lessons from Chile

Abstract

Most analyses of the judicialization of politics focus on judicial policy-making and rights creation; however when judicialization of politics unfolds in a separation of powers political context courts are also involved in distributing power. The task of power delineation among branches of government is different from policy-making or rights adjudication. Judicializing political disputes about power gives courts the opportunity to alter the balance of institutional power, to create stronger executives (or legislatures) and a stronger (or weaker) role for themselves. To illustrate these points, this article examines how the Chilean Constitutional Tribunal (TC) adjudicated a specific type of separation of powers conflict between the Legislature and the Executive from 1990-2005. The analysis of the TC doctrine overtime highlights how the TC has shifted the balance of power in the policy-making process and augmented its influence within the political system.