John Hart Ely’s theory of judicial review was centrally concerned with the role of courts in preserving democracy in the constitutional context of the United States. At first blush, then, the comparative turn toward Ely might strike a jarring note. This article contributes to the discourse on comparative political process theory, or comparative representation-reinforcing theory, by examining the judicial role in preserving democracy, as well as the role that courts can play in constructing and facilitating constitutional democracy, particularly in fragile democracies. It considers three illustrative examples: the United Kingdom Supreme Court decision overruling the prorogation of Parliament; the Malaysian Federal Court’s development of a constitutional basic structure doctrine; and the Malawi Supreme Court’s decision invalidating the outcome of a presidential election. It concludes with reflections on juristocracy and distrust, and the reach (and limits) of the endeavor to expand Ely’s theory globally.
