The document summarizes and compares the "insurance logic" and "hegemonic preservation logic" arguments for why politicians delegate power to courts. The insurance logic argues that politicians empower courts to protect future political minorities from threats. Politicians anticipate losing power and strengthen courts beforehand so courts will protect them later. The hegemonic preservation logic argues that dominant elites empower courts to insulate favored policies from majoritarian change, as long as judges uphold the elites' preferred policies. Elites delegate power to prevent losing control over key issues. Both arguments propose politicians strengthen courts before anticipated loss of power. However, insurance logic requires politicians later becoming minorities, while hegemonic preservation only needs elites maintaining influence through

1. Court Building:
Ginsburg and Hirschl
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2. Overview
• Key question:
– What are the origins of judicial power?
• Recall concept of judicial power, and then think about the
causes of judicial empowerment
– Why do courts become stronger (gain more power) in
some places or at some point in time, while they fail
to do so in other places and times?
• Underlying puzzle:
– Why do politicians delegate power?
– Why would politicians choose to give away some of
their power – effectively constraining themselves – by
empowering another branch of government (courts)?
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3. Overview
• We look closely at two explanations:
– Ginsburg’s insurance logic
– Hirschl’s hegemonic preservation logic
• Objetives:
1) General understanding of each argument
2) Understand concrete sequence of events
expected by each argument
3) Be able to apply the argument to different
episodes of reform in order to judge whether
the arguments help explain judicial
empowerment, or which argument offer a better
explanation of reform
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4. Ginsburg 2003
• Insurance Explanation of Judicial
Reform/Empowerment
• Generally, what does Ginsburg mean when he
says that judicial reform is motivated by the
desire for “political insurance”?
• Short answer:
– Judicial reform (giving power to courts) in the present
makes sense if politicians are trying to protect
themselves from some future threat
– That is, enhancing the real power of courts today so
those courts will protect you tomorrow is the
equivalent of “buying” insurance today in order to be
protected from some future risk/danger
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5. Concrete sequence of expected events
1) Present political majorities (dominant, ruling group)
feels some threat or uncertainty regarding their future
power (e.g., electoral margins getting thinner over time,
polls or research anticipate upcoming defeat)
2) Prior to election in which present majority anticipates a
real possibility of losing (and thereby becoming the
political minority), they pursue judicial reform
3) Judiciary is strengthened in real terms; that is, it
acquires real power to protect political minorities
4) Alternation in power
5) Newly powerful court protects new political minority
*** Note: evidence in favor of argument would be strongest if all 5
events are observed, but do you really need all 5?
What if you only observed the first 3 and then the initial political
majority still managed to remain in office?
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6. Hirschl 2001
• Hegemonic preservation argument
• Generally, what does Hirschl mean when he says that
judicial reform is motivated by “hegemonic
preservation”?
• Short answer:
– Hegemonic (i.e., dominant) elites preserve their power
and influence
– These elites only empower courts if sympathetic, friendly
elites are among the judges on the courts
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7. Hegemonic Preservation
• Longer answer:
– Cultural, economic, and legal elite join forces to
delegate policymaking authority to judiciary
– Insulate or protect preferred policies from
majoritarian processes
– Says electoral competitiveness is not necessary
(105)
» Is this correct?
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8. Concrete sequence of expected events
1) Present political majorities (dominant, ruling, hegemonic
group) feels some threat or uncertainty regarding their
future power
2) Prior to losing power/influence in majoritarian branches of
government, dominant elites delegate power over key policy
issues to the judiciary
1) Move key policies from majoritarian arenas to
minoritarian ones
3) Only do so if judges are part of the dominant
cultural/political group
4) Old dominant group loses control of majoritarian offices
5) Newly powerful court continues to protect and uphold
preferred policies of old dominant group
*** Note: again, evidence in favor of argument would be strongest if all 5 events are observed, but do
you really need all 5?
What if you only observed the first 3 and then the initial group still managed to remain in office?
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9. Conclusions
• How are the two arguments similar?
– If Ginsburg and Hirschl are correct, what would
you expect to see in the real world that would be
consistent with both arguments?
• How are they different?
– If only one or the other is correct (Ginsburg or
Hirschl), what are some concrete events you could
look for in the real world that would help you say
that it was definitely insurance or definitely
hegemonic preservation that explained an episode
of judicial reform?
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