Fontana, David --- "Docket Control and the Success of Constitutional Courts" [2011] ELECD 393; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 33

Section Title: Docket Control and the Success of Constitutional Courts

Author(s): Fontana, David

Number of pages: 19

Extract:

33. Docket control and the success of constitutional
courts
David Fontana*



I INTRODUCTION

In a chapter about comparative constitutional law, it might be surprising to start off this chap-
ter with a mention of Alexander Bickel. Bickel was no doubt one of the landmark figures in
American constitutional law. Writing in 1980, John Hart Ely called him `probably the most
creative constitutional theorist of the past twenty years'.1 But exporting some of Bickel's ideas
about American constitutional law can actually inform our understandings of comparative
constitutional law as well. Bickel's observation that the power of courts to do nothing ­ to
avoid deciding constitutional cases entirely by declining to grant certiorari and hear a case in
the first place ­ can greatly enhance the success of these courts, is an observation that can help
us understand much of the success and failure of various courts deciding constitutional cases
around the world, even beyond the United States Supreme Court. This judicial power to decide
not to hear a case is a power that I will reference as the power of `docket control'. It is not just
a significant power for the United States Supreme Court, but for all courts deciding contro-
versial constitutional cases.
There are many reasons why giving courts the power of docket control can contribute to
their success. Deciding what cases to decide permits a court to issue the right decisions at the
right times, what this chapter calls `issue timing'. A court can avoid encountering an ...