PICTURE: ALON SKUY Twenty-two years after the end of apartheid, South Africa’s Constitutional Court is one of the few meaningfully independent public institutions left in the country.Its decisions on political and social rights in particular have helped to counteract the worst effects of the governing ANC’s political dominance. In this way it has contributed to the consolidation of South Africa’s democracy.How has the court come to play this role?Neither of the two main currents in the literature on the conditions for independent judicial decision-making really provides an explanation.The first, called “the regime politics view”, holds that constitutional courts seldom deviate far from the ideological preferences of the dominant political coalition in a country.While true of the US Supreme Court for much of the last century, this theory does not travel well. It also fails to account for judicial agency — the capacity of constitutional courts to exert an independent influence on the ...

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