ABSTRACT
The relationship between the ideals of representativeness and effectiveness of political institutions has long been a concern for political theorists, 1 particularly since democracy became “the only game in town” (Linz and Stepan 1996). Indeed, we typically expect democracies to have institutions that are both representative of the people they serve as well as effective in the delivery of the public goods they are supposed to provide. There are, however, instances in which there might be a trade-off between democratic representativeness and effectiveness. This is, I submit, the case with judicial institutions, where representation often translates into lack of impartiality (Peabody 2011). Therefore, while we expect most of the institutions of modern democratic regimes to be both representative and effective, in the case of judicial institutions we should accept to sacrifice a degree of representativeness in order to get effective courts—that is, ones that deliver timely decisions adopted in accordance with the Constitution and the law. Indeed, recent history suggests that, in the case of the judiciary, effectiveness is negatively correlated with representativeness (Burbank and Friedman 2002). In other words, the more “representative” a court is—that is, the more responsive to the preferences of the people—the more likely it will be to abandon its crucial role as an impartial adjudicator of previously settled legislation in the case at hand.
