Court Reform in the Age of Polarization

This paper is an adaptation of the last two chapters of a book that I am co-authoring with Moshe Cohen-Eliya, titled “Polarization and Courts: Supreme and Constitutional Courts in the Age of Polarization”(CUP, forthcoming 2025). The book’s main aim is descriptive and comparative. The book documents and attempts to explain a phenomenon – the rise of polarization around the world, with apex courts being affected by it and responding to it in different ways in different parts of the world. This phenomenon, however, is also a problem. Polarization’s effects on courts are mostly negative, and include such problematic occurrences as loss of trust in courts, politicization of the courts, and the placing of courts at the centre of divisive politics. Indeed, while some courts were able to deal with the effects of polarization relatively well, in many countries, the challenge of polarization to courts reaches the level of a full-blown crisis that touches at the core of the court’s function and legitimacy. In the last two chapters, we address the normative question of how to solve the problems created by polarization; specifically, what kind of court reforms can make courts better equipped to function amid polarization. We begin by identifying the main problem as that of court partisanship. We then move on to review a host of reform proposals aimed at addressing court partisanship, especially in the US, and offer our categorization thereof. Finally, we summarise our analysis and suggest principles that can guide future reform.