“Independent or Dependent? Constitutional Courts in Divided Societies” in C. Harvey & A. Schwartz, eds., Rights in Divided Societies (Hart Publishing, 2012) 89-123 (with R. Stacey).
In ethnically divided societies – especially in post-conflict settings – there are two constitutional agendas regarding the design of the apex court charged with interpreting the bill of rights. On the one hand, there is the demand for judicial independence. A central justification for judicial independence is that it flows from the very idea of a bill of rights, which protects ethnic minorities from the tyranny of an ethnic majority. But in some divided societies, there is an attempt to institutionalize ethnic divisions in the design of the apex court itself. These two constitutional agendas are deeply in tension. The first seeks to render courts independent of political actors. The second seeks precisely the opposite: to ensure that individual judges are in effect representatives of particular ethnic groups.