The principle of independence of the judiciary, while fundamental to a society based on the rule of law, is sometimes used to preclude the evaluation of courts. Such an approach is mistaken: judges and courts should be both independent and subject to evaluation.
The rise of populism in Eastern Europe has had a significant effect on the rule of law, and the reaction of the judiciary to the changing political environment has been particularly revealing.
Whether socio-economic rights should be entrenched in constitutions has been a subject of lively debate. On the one hand, it has been argued that such an entrenchment is necessary in order to recognize the worth and standing of those rights and in order to give individual claimants sufficient remedies in cases of a breach of a right. On the other hand, it has been argued that it is unnecessary (because statutory recognition is sufficient) and even harmful because it invites judges to enter into the field of social policy where they have neither competence nor legitimacy to act.
Courts are very often required to adjudicate complex social policy disputes, and there is no sign of the tide turning back. Such disputes arise under European Community law, in the private law of tort and contract, in constitutional law questions, and whenever policymakers must decide upon the content of an important new statute or even a bill of rights.
The question of how courts respond to national emergencies or crises is of profound importance in a democratic society. In the United States, the federal courts exercise the power of judicial review, giving them the authority to invalidate acts of legislatures or executives as unconstitutional. Given this, those groups who wish to ensure that government does not infringe on valued liberties during times of crisis often look to the federal courts to serve as a limitation on legislative and executive overreach.