2015, Vol. 13 No. 1, 200-218 doi: 10. 1093/icon/mov003

3.2. Judicialization as a product of political instruction and 
manipulation
Ran Hirschl notes that neither a favorable constitutional framework nor judicial activ-
ism is a sufficient condition for judicialization, and that the latter is more likely a prod-
uct of tacit or explicit support for politicians.
35
 The patterns of judicial politics in the 
30
M
aRk
M
ac
k
Inon
, 
t
he
n
ew
c
old
w
aR
: R
evolutIonS
, R
IGGed
e
lectIonS
, 
and
P
IPelIne
P
olItIcS
In
the
f
oRMeR
S
ovIet
u
nIon
204, 205 (2007).
31
Bohdan Futey, 
Legal Analysis: Ukraine’s Supreme Court Decision
, 
u
kRaInIan
w
eekly
(Dec. 12, 2004) 50.
32
For more details, 
see
Scott Radnitz, 
What Really Happened in Kyrgyzstan
, 17 
J. d
eMocRacy
132 (2006); 
Edward Schatz, 
The Soft Authoritarian “Tool Kit”: Agenda-Setting Power in Kazakhstan and Kyrgyzstan
, 41(2) 
c
oMP
. P
ol
. 203
(2009).
33
Henry Hale, 
Formal Constitutions in Informal Politics
, 63(4) 
w
oRld
P
olItIcS
581 (2011).
34
Further on constitutional development in Kyrgyzstan, 
see
Anita Sengupta, 
3 Colour Revolutions and 
Constitutionalism: The Case of Kyrgyzstan
, in 3 
P
olItIcS
, I
dentIty
and
e
ducatIon
In
c
entRal
a
SIa
: P
oSt
-S
ovIet
k
yRGyzStan
52 (Pinar Akçali & Cennet Engin-Demir eds., 2013).
35
Hirschl, 
supra
note 25, at 744.
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13 (2015), 200–218
former Soviet space perfectly confirm this proposition. As is apparently the case all 
over the world, political players may have a number of incentives to delegate decision-
making on certain issues to courts. The incentives vary from willingness to shift or 
spread responsibility, to the intention to mislead domestic opponents or external coun-
terparts. Using their status as the de facto masters of the judiciary, the post-Soviet 
ruling elites do not simply refer to the courts or tacitly support them in making politi-
cally significant decisions; very often, they blatantly manipulate the judiciary for their 
openly partisan purposes.
The choice of methods to influence the courts depends on the significance of the 
political stakes involved in the given case, the overall reputation of the court in the soci-
ety, as well as the general patterns of political culture in the given polity. Considering 
the historic use of coercion techniques against courts,
36
it is fair to say that whenever 
the judiciary is expected to determine the outcome of political competition for power 
or intervene in the area of vital interests of the power holders, it is not only by soft 
power that politicians may be ready to guarantee their best possible outcomes. This 
said, since the era of the hardliner attacks on courts in the 1990s, politicians have 
learned techniques of soft dominance, while the judges have learned survival strate-
gies and techniques of diplomatic interaction with the incumbents. As a result, the 
interaction between the ruling political groups and the courts in the former Soviet 
republics have come to better resemble the partnership alliance which Robert Dahl 
famously demonstrated to be present between the Supreme Court and the dominating 
political group in the United States.
37
Russia is probably the most illustrative case in point. Russia’s Constitutional 
Court, even in its post-1993 incarnation, is probably the most politicized court in 
the world. In its short history, this Court has appeared in the headlines of world news 
numerous times: the decisions legitimizing the war in Chechnya, barring President 
Yeltsin from standing for his third term, and endorsing Putin’s reform eliminating 
the elections of governors being the most visible ones among them. With all this in 
mind, judicial empowerment in Russia is clearly controlled from above and is lim-
ited to very specific contexts. Famously labeled the “fifth wheel of the carriage of the 
Russian autocracy,”
38
the Russian Constitutional Court has been barely visible in any 
action that would strongly upset the incumbent political leadership, even though the 
Court appears to be rather active, if not activist, in rights-adjudication, and often, 
as described above, in making decisions that do not belong to the judiciary’s man-
date as per the mainstream democratic theory. In this light, taking the examples of
judicial involvement in politics as patterns of a true transfer of power from the politi-
cians to the courts, at least as far as pure politics is concerned, would sound as a bold 
exaggeration.
36
These instruments have ranged from banal trade off with courts’ and judges’ logistics and remuneration, 
removal of judges from office and manipulation of procedural law for their persecution, and to threats to 
personal and physical well-being, as well as physical abuse per se. To get an idea of how such instruments 
have been used in just one country, Ukraine,