Week 6
even in systems where judicial independence is strong, there are many points of contact between the judiciary, the legislature and the executive
appointment of judges
competence disputes
judicial review of adminstrative acts
judicial review of statutory law
constitutional (and sometimes ordinary) courts have in many jurisdictions the power of judicial review
the legislating body knows its acts can be reviewed
courts depend on the executive branch for enforcement
in general, legislators want to avoid having their laws struck down by judges
what is the chance the act will be reviewed?
what is the chance the act will be overturned?
the legislature only needs to fear the courts when judicial review is likely to happen
in some countries this is virtually guaranteed (e.g. US), while elsewhere there will be more uncertainty
in the EU, if all political actors agree, there is very low chance of review
the possibility of judicial review can be endogenous to policy making (Pavone and Stiansen 2022)
the legislature only needs to fear the courts when they prefer to overturn an act
the legislature will look for information on:
the court’s previous case law
judges’ ideological distance
public support
in reality, no actor has complete and perfect information about the judicial review game
there is uncertainty about how the courts will react
actors sometimes behave irrationally
the legislator might water down an act or otherwise pre-empt negative judicial action
in some cases, the legislator will not shy away from judicial conflict (Schroeder 2022)
when they have strong public support (Vanberg 2001; Krehbiel 2016)
when they signal intention to not comply
courts have also reasons to fear confrontation
non-compliance undermines their power and legitimacy
may trigger court curbing by the other branches
just like legislatures do not want to be censored by courts, courts do not want to be overridden by legislatures
due to courts’ enforcement-dependency, non-compliance is an attractive strategy for other actors (especially other branches of power)
in most cases it is less costly for the government/legislator to evade compliance implicitly
courts may also take into account whether their decision is likely to be overridden by the legislature (Meernik and Ignagni 1997; Larsson 2021)
courts are looking for judgments which are as close as possible to their ideal point but not so far as to get overridden
US Override Game from Dyevre (2010)
EU Override Game from Dyevre (2010)
the legislator signalling intent to engage in court curbing is likely to lead to judicial self-restraint
a number of possible measures:
budget and staffing cuts
induced judicial exits (e.g. lowering retirement age)
court expansion and packing
limiting jurisdiction and powers
fear of negative repercussions leads to self-censoring by courts
courts are on safer ground when they support popular policies
consistent with the idea of the majoritarian court is evidence of courts ruling against policies of previous governments (Segal, Westerland, and Lindquist 2010; Gillman 2002)
a “friendly” judicial intervention can be particularly valuable when it concerns constitutional interpretation that would be otherwise difficult to legislate away (e.g. Roe and Dobbs)
also helps explain why governments might sometimes appear to support “activist” judiciaries (Whittington 2005)
POLS0113: Judicial Politics