Courts, Executives and Legislatures

Week 6

Dr Michal Ovádek

Strategic interactions

  • How do courts, executives and legislatures interact in the enactment and enforcement of policy?
  • How does strategic anticipation of mutual preferences affect how they behave?

Separation of powers

  • 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

Judicial review

  • 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

    • public support for courts makes enforcement more likely

Anticipating judicial review

  • in general, legislators want to avoid having their laws struck down by judges

  • what is the chance the act will be reviewed?

    • shaped by rules on jurisdiction and judicial review
  • what is the chance the act will be overturned?

    • shaped by distance between legislator and court

Anticipating judicial review

  • 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)

Anticipating judicial review

  • 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

Anticipating judicial review

  • 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

Anticipating judicial review

  • in some cases, the legislator will not shy away from judicial conflict (Schroeder 2022)

Anticipating reactions

  • 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

(Non-)Compliance

  • due to courts’ enforcement-dependency, non-compliance is an attractive strategy for other actors (especially other branches of power)

    • but non-compliance can itself generate more litigation
  • in most cases it is less costly for the government/legislator to evade compliance implicitly

    • e.g. creating a parliamentary working group but never delivering (Vanberg 2001)

Threat of override

Threat of override

US Override Game from Dyevre (2010)

Threat of override

EU Override Game from Dyevre (2010)

Court curbing

  • 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

The constrained court

  • fear of negative repercussions leads to self-censoring by courts

  • courts are on safer ground when they support popular policies

The friendly court

  • 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)

References

Dyevre, Arthur. 2010. “Unifying the Field of Comparative Judicial Politics: Towards a General Theory of Judicial Behaviour.” European Political Science Review 2 (2): 297–327. https://doi.org/10.1017/s1755773910000044.
Gillman, Howard. 2002. “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875-1891.” American Political Science Review 96 (3): 511–24. https://doi.org/10.1017/S0003055402000291.
Hall, Matthew E. K., and Joseph Daniel Ura. 2015. “Judicial Majoritarianism.” The Journal of Politics 77 (3): 818–32. https://doi.org/10.1086/681437.
Krehbiel, Jay N. 2016. “The Politics of Judicial Procedures: The Role of Public Oral Hearings in the German Constitutional Court.” American Journal of Political Science 60 (4). https://doi.org/10.1111/ajps.12229.
Larsson, Olof. 2021. “Political and Constitutional Overrides: The Case of the Court of Justice of European Union.” Journal of European Public Policy 28 (12): 1932–49. https://doi.org/10.1080/13501763.2020.1807586.
Meernik, James, and Joseph Ignagni. 1997. “Judicial Review and Coordinate Construction of the Constitution.” American Journal of Political Science 41 (2): 447–67. https://doi.org/10.2307/2111772.
Pavone, Tommaso, and Øyvind Stiansen. 2022. “The Shadow Effect of Courts: Judicial Review and the Politics of Preemptive Reform.” American Political Science Review 116 (1): 322–36. https://doi.org/10.1017/S0003055421000873.
Schroeder, Philipp. 2022. “Pushing Boundaries: How Lawmakers Shape Judicial Decision-Making.” Comparative Political Studies 55 (14): 2447–79. https://doi.org/10.1177/00104140221089649.
Segal, Jeffrey A. 1997. “Separation-of-Powers Games in the Positive Theory of Congress and Courts.” American Political Science Review, 28–44.
Segal, Jeffrey A., Chad Westerland, and Stefanie A. Lindquist. 2010. “Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model.” American Journal of Political Science 55 (1): 89–104. https://doi.org/10.1111/j.1540-5907.2010.00480.x.
Vanberg, G. 2001. “Legislative-Judicial Relations: A Game-Theoretic Approach to Constitutional Review.” American Journal of Political Science, 346–61.
Whittington, Keith E. 2005. Interpose Your Friendly Hand: Political Supports for the Exercise of Judicial Review by the United States Supreme Court.” American Political Science Review 99 (4): 583–96. https://doi.org/10.1017/S0003055405051890.