Ran Hirschl has posted this draft (forthcoming, Annual Review of Political Science) on SSRN. Here is the abstract:

In a recent lead article in the Harvard Law Review, Prof. Fredrick Schauer suggests that the U.S. Supreme Court operates overwhelmingly in areas of low public salience. Perhaps so. But when we turn our gaze overseas, the picture is distinctly different. Over the past two decades, there has been a tremendous growth worldwide in the reliance on courts for dealing with some of the most fundamental political quandaries a polity can contemplate. The judicialization of politics worldwide has expanded its scope beyond flashy rights issues to encompass what we may term ‘mega-politics’ – matters of outright and utmost political significance that often define and divide whole polities. In this article, I explore the scope and nature of judicialization of this kind. I begin by identifying the characteristics of the judicialization of mega-politics. I then illustrate the various forms and manifestations of the judicialization of mega-politics through recent examples drawn from jurisprudence of courts and tribunals worldwide. Next, I turn to explanatory factors. Works that attempt to explain (not merely describe) the judicialization of politics may be grouped, for the sake of simplicity, into four main categories: functionalist, rights-centered, institutionalist, or court-centered. None of these four approaches takes the conceptualization of courts as political institutions seriously enough. To complement these approaches, I advance here a more ‘realist’ judicialization-from-above account, which emphasizes support from the political sphere as a necessary precondition for judicialization of pure politics. To further illustrate this point, I survey patterns of political reaction to recurrent manifestations of unsolicited judicial intervention in the political sphere in general, and unwelcome judgments concerning contentious political issues in particular.