Strategic litigation as a challenge for deliberative democracy

Abstract Strategic litigation is a growing public concern, but remains understudied in democratic theory. In strategic litigation, collectives go to court with a political agenda that goes beyond their specific case. How should we assess the legitimacy of strategic litigation? Building on Lafont's model of deliberative democracy and Klein's distinction of institution‐as‐procedures and institutions‐as‐mechanisms, I propose a new deliberative framework of assessment. First, I argue that strategic litigation mobilizes groups of citizens in a specific pattern of differentiated mobilization. Second, including this pattern of differentiated mobilization in our normative evaluation shows how strategic litigation can empower citizens (by contributing to agenda‐setting, group‐strengthening, context‐disclosing), but also disempower citizens (by enabling agenda‐masking, group‐simulating, context‐distorting). What is problematic from a deliberative perspective is that strategic litigation mobilizes citizens in a way that makes it difficult for them to identify and contest disempowering uses.