The Politics of Judicial Impact in Social and Economic Rights Cases

Can courts advance social and economic rights (SER)? This chapter defines judicial impact and argues that courts produce it by transforming the normative framework and affecting the relationships among actors in three different fields—social, political, and legal—through four different effects—ideational, discursive, organizational, and material. The chapter discusses three differing views of the role of courts in realizing rights in the literature. First, those that argue judicial interventions are counterproductive and may set back the goals SER are ostensibly meant to advance; second, those that view courts as at best irrelevant; and third, those that contend that courts can—under certain conditions—make positive contributions to the goals that SER appear meant to advance. This chapter is squarely in the third camp, arguing that any effectiveness courts can have in advancing SER hinges less on the courts and what they do and more on the politics of impact that follows the courts’ decisions. Impact, according to this chapter, is co-produced by state and social actors working with courts, in a dynamic political process that begins even before a decision is handed down and extends afterward. The concluding section provides examples from the literature to illustrate the different pathways through which courts can affect outcomes