
Contents
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1. Introduction 1. Introduction
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2. Devising political strategies 2. Devising political strategies
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i. Timing: agenda and duration i. Timing: agenda and duration
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ii. Width, depth, and tone ii. Width, depth, and tone
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iii. Degree of cohesion iii. Degree of cohesion
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iv. Cooperation of powers iv. Cooperation of powers
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v. Public opinion v. Public opinion
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3. Managing the constraints of politics: esoteric political instinct 3. Managing the constraints of politics: esoteric political instinct
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4. Between prudence and courage: a deliberative court as a tightrope walker 4. Between prudence and courage: a deliberative court as a tightrope walker
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5. Conclusion 5. Conclusion
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8 The Political Circumstances of Constitutional Scrutiny
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Published:December 2013
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Abstract
This chapter examines the political constraints of constitutional adjudication. It first discusses the five main political choices facing constitutional courts. These are tensions involved in the following: agenda-setting and docket-forming; in defining the degree of cohesion of the written decision (whether single or plural); in calibrating the width, depth, and tone of the decisional phrasing; in anticipating the degree of cooperation or resistance of the other branches; and in managing public opinion. The chapter further recommends that the virtues of prudence and courage should help a constitutional court to handle the political pressures it faces. It then characterizes what the political facet of constitutional scrutiny entails for the court's internal deliberation. The chapter considers the notions of prudence and courage as supplementary virtues that shape the ethics of deliberation and assist the court to handle those political constraints.
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