Comparative Judicial Politics
John Ferejohn, Frances Rosenbluth, and Charles Shipan
It is hard to think of a political system that does not trumpet its commitment to “the rule of law,” based on the principle that citizens are better off when the political system establishes rules for all to follow, rather than subjecting citizens either to arbitrary rule or to anarchy1. By entrusting the interpretation and enforcement of laws to legal specialists, the government agrees to abide by its own laws, and the courts can rule against the government to uphold the “laws of the land.” Governments in most political systems are at least rhetorically deferential to this concept.
Less universally embraced is the power of courts not only to enforce, but also to review and potentially to overrule legislative statutes. What is the justification in a democracy for a non-majoritarian body of experts to second-guess the majoritarian institutions charged with drafting the laws in a way that reflects society’s interests? We explore briefly, both normatively and positively, the reasons for and against both kinds of judicial oversight.
Because this chapter is comparative in focus, we spend most of our effort considering reasons for cross-national variation in judicial powers. In the United States, where an independent judiciary is now taken for granted, the state conventions were concerned that the new federal judiciary would be too powerful and insisted on adding additional procedural rights such as jury trials for civil cases. Democratic theory in Europe remained infused with the Rousseauian notion of the “sovereign assembly” far longer. The German jurist, Carl Schmitt, opposed judicial review on grounds that it would lead both to the judicialization of politics and the politicization of the judiciary (Schmitt 1958, cited in Stone 1992). He was, of course, right about these effects. Courts undertaking judicial review make decisions with potentially large political consequences and hence make themselves unelected political actors. And from the judicialization of politics springs the politicization of the judiciary, for nowhere does the judiciary grow in importance without politicians also becoming more interested in influencing judicial appointments and processes (Ferejohn 2002). As we argue below, the differences between the U.S. and European judiciaries have less to do with the prevailing theories of how popular sovereignty relates to jurisprudence, but with the institutional capacities of courts to act independently of political actors.
Whether the blurring of lines between the political and judicial is an evil trend to avoid, as Schmitt feared, depends on how one evaluates the countervailing benefits of courts being empowered to protect a hierarchically ordered set of legal principles. Countries that have become democracies since World War II have overwhelmingly embraced the idea of explicit constitutional oversight by a specially designated court, presumably because bad experiences with authoritarian rule have eroded the public’s confidence in parliamentary sovereignty, or perhaps in judiciaries enforcing fascist laws (Ferejohn 2002; Ferejohn and Pasquino, 2004).
Insulating courts from political manipulation is another matter. Behind the “veil of ignorance” during a period set aside for constitutional design, any group lacking certainty of future majority status may have an interest in constitutional protection of basic rights. But once in control of a legislative majority, that same group may want to reduce the power of courts to overturn duly legislated policies. Appointing judges for life can protect individual judges from being punished for rulings the government doesn’t like, but if the political branches of government can draft new legislation that overturns court rulings or can legislatively change the composition of the court, personal security does not leave room for the courts to play a large autonomous role. Individually independent judges can function collectively as a politically dependent judiciary (Ferejohn 1999).
Here, the specific institutional setting matters. Appointing judges by a legislative supermajority has the normatively desirable effect of creating a relatively nonpartisan or at least an ideologically pluralistic bench. But even here, the space for autonomous court action will be determined by the rules governing court re-composition. This is an example of the more general point that rules are powerful in inverse proportion to the costs involved in coordinating against them (Hardin 1989). As we will argue, the government’s command of the legislative quorum required to reconstitute the court is the single best predictor of court activism regardless of the court’s structure and internal composition. At the same time, this power is not sufficient; judicial independence is also affected by the broader features of the institutional and political setting.
In parts of the third world where social conventions strain to promote socially constructive behavior under conditions of unstable political institutions, judicial independence may be both more important and more difficult to secure. Governments struggling to stay in power may relinquish control of judicial appointments and promotions, or grant judges wide jurisdictional scope, though rarely both at the same time. A government can use friendly judges to harass the opposition (Maravall and Przeworski 2003: 14). But we also know from variation in judicial independence across and within countries that shaky public support for the incumbent government sometimes gives the judiciary opportunities to rule against the government. A more nuanced understanding of the causes of judicial independence can also help us evaluate arguments about its effects.
The rest of this chapter is organized as follows. Section 2 defines more systematically what we mean by judicial independence. Section 3 presents theoretical explanations, normative and positive, for judicial independence. In Section 4 we examine judicial systems in a classificatory rather than fully empirical way, leaving open many avenues for, and we hope inspiring interest in, future research. We sketch out some of our own ideas for empirical research in Section 5. Section 6 concludes.
2. Defining Judicial Independence
We take judicial independence to mean court autonomy from other actors. To the extent that a court is able to make decisions free of influence from other political actors, and to pursue its goals without having to worry about the consequences from other institutions, it is independent. The greater the level of input that these other actors have on the court’s personnel, case selection, decision rules, jurisdiction, and enforcement of laws, the less independent it is. In other words, we are equating judicial independence with the court’s ability to act sincerely according to its own preferences and judgments.
It is easy to conceive of courts that are at the polar ends of complete independence and utter dependence, at least in hypothetical terms; but in reality, most courts occupy a middle ground on this continuum. More difficult is to assess which factors influence the level of independence and how much weight each of these should receive. We will return to these measurement issues in subsequent sections.
2.1 Statutory Judicial Review
We start by distinguishing between two kinds of court actions to which political actors can respond. First, courts may engage in statutory judicial review, in which they may determine that actions by regulatory agencies or rulings by lower courts are inconsistent with existing law. Second, supreme courts or constitutional courts may be empowered to rule on the constitutionality of legislation itself. In many countries, this power of constitutional judicial review is given to a constitutional court that is separate from the regular judiciary and is deliberately structured to be more autonomous. But in countries such as the U.S., where the Supreme Court is both an appellate court and a constitutional review body, the same court may have different levels of autonomy across these domains. Institutional hurdles for legislatures to override these different types of judicial actions, along with the legislature’s ability to influence the court’s personnel, will shape the level of judicial autonomy in each domain (Epstein, Segal, and Victor 2002). We consider each in turn.
If a court can determine that the rulings of regulatory agencies or other political actors (e.g., subnational governments, lower courts, etc.) are incompatible with existing law, a legislature has the option, if it has a coherent majority, to pass new legislation that overrides the court’s ruling. Spatial models show how the threat of a legislative override can cause a court to implement a policy different from what it would choose if it were completely independent (e.g., Ferejohn and Shipan 1990). Consider, for example, two actors – a Judiciary, denoted by J, and a Parliament (or more generally, a Politician) denoted by P – and a status quo point denoted by q, which represents a policy chosen by some other political actor, such as an agency. Assume that the Judiciary has the option to choose a policy rather than being limited to an up or down vote; that the Parliament has the opportunity to respond to the court’s decision; and that the Parliament will act in this policy area only once another actor, such as the court, disrupts the current equilibrium and makes the Parliament worse off than it currently is (perhaps because a committee works to protect q from legislative action). Figure 1 presents this scenario.
If the court were independent and did not need to worry about being overridden, it would simply choose to implement J, its ideal point. But in this example – and in most political systems – the Parliament will have the opportunity to respond to the court’s action. Thus, if the court were to try to implement J, the Parliament would respond by selecting P. The court, then, realizes that the best it can do is to move policy to P. In effect, the court is forced to take the Parliament’s preferences into account in order to avoid triggering an override; and to do so, it is forced to select a policy that is distant from its most preferred policy.
2.2 Constitutional Judicial Review
The second kind of court action we consider, one that is weightier than judgments on agency or lower court rulings, is constitutional judicial review.2 This type of review applies only to supreme courts or constitutional courts that are constitutionally authorized to review the constitutionality of legislation passed by the legislature. The strategic interaction between the judicial reviewing court and the legislature is analytically the same as what we have sketched out for overrides, except that the legislature can overturn the court’s ruling only by changing the constitution itself, or by recomposing the courts to get a new ruling. Overturning constitutional review or changing the composition of courts often require supermajorities of the legislature or other cumbersome processes that are intended to give the courts more autonomy in these kinds of deliberations. Whether or not legislative coalitions are sufficiently large either to amend the constitution or to reconstitute the court determines the effective level of autonomy the court can exercise in judicial review.
In the following section we examine normative theories for why the court ought to be independent, either to enforce laws of the land, or to review the constitutionality of the laws themselves. We then return to positive analysis of the institutional and other conditions under which a court is likely in practice to be able to act autonomously from political actors.
3. Explaining Judicial Independence
3.1 Normative Theory
Even dictators, disingenuously or not, often claim that courts should enforce the “laws of the land.” By allowing the government to make credible commitments not to confiscate wealth, a guardian judiciary might increase the level of private economic investment, reduce the cost of government debt, and promote economic growth (Landes and Posner 1975; North and Weingast 1989; Kerman and Mahoney 2004; Djankov, La Porta, Lopes-de-Lilanes, Schleiffer 2003). For these purposes, judicial independence, which allows judges to enforce contracts without the possibility of government interference, may be more important than judicial review, which typically does not protect private parties from each other.
The power of judicial review is less universally accepted, especially among democracies, because it sets the courts above majoritarian institutions in articulating and defending constitutional values above duly passed legislation. The most straightforward normative rationale is probably that everyone can be better off, from behind a veil of ignorance, when society is governed by fairly constructed constitutional principles that stipulate rights and duties, and that these might be better protected, particularly for minorities, by legal experts than by political actors supported by shifting majorities. Even without recourse to a belief in a “natural law” that is waiting for legal experts to uncover on our behalf, it is straightforward to see why a commitment to agreed-upon principles such as political equality may not be best left to political agents whose incentives are to execute that commitment selectively. The underpinning idea is that constitutional principles are more fundamental than legislation that may reflect bargains of convenience at the expense of others’ political rights.
Democracies have a systematic defense against a certain kind of judicial independence in that they insist that the legislature or the people ought to have the last word on court jurisdiction. In practice however, democracies usually support other forms of independence by granting judges lifetime or long tenure, by protecting their salaries, and by making it procedurally difficult to change the composition of the courts.
An additional public interest argument for an independent judiciary rests on the premise that incomplete information about the future effects of legislation on outcomes would lead to excessively conservative laws were it not for the existence of an ex post check on legislative actions. To our knowledge no one has evaluated this proposition empirically. But at least hypothetically, countries with constitutional review may adopt a more risk-accepting approach to legislating without suffering from the effects of ideas gone wrong since the courts can tamp them down in fairly short order (Rogers 2001). This logic breaks down, however, if one worries about judiciaries being unaccountable to the public, particularly if judiciaries are thought have their own goals that could be out of line with the public interest.
AIndeed, against these arguments for judicial independence is the long standing European concern that the legislature, as the embodiment of popular sovereignty, is the most suitable organ for making decisions in a democracy. Judiciaries can themselves be mercurial or overbearing, as some American colonists feared and as Nigerian citizens have experienced, and a better solution to the problem of protecting minority rights might be to give minorities a stronger voice in the assembly (Olowofoyeku 1989; Shapiro 2002). Others argue that legal incrementalism tends to frustrate radicals reforms and naturally favors conservative causes (Landfried 1989 cited in Stone Sweet 2002b).
This debate reduces to an empirical question about the trade-offs entailed in a court-based versus an assembly-based protection of political and other rights, and is impossible to answer without intimate knowledge of the political institutions and processes of each country in question. We will return to these questions in the conclusion, but sidestep for now the normative debate by noting that the public good has rarely been sufficient reason for politicians to adopt any particular institutional arrangement. As Stephen Holmes quips, law does not descend upon societies from a Heaven of Higher Norms (Holmes 2003: 53). Or in Jon Elster’s words, “nothing is external to society” (1989: 196). If politicians can make themselves better off by reneging, why would they choose to tie their hands? Even if long-term interaction among the same players might increase the possibility that politicians would be willing to delegate oversight authority to the courts to regularize competition, we know from the Folk Theorem that this does not preclude other equilibria. We turn now to positivist accounts that look more closely at politicians’ incentives.
3.2 Political Independence
There are multiple explanations for why some judiciaries may be more politically independent or perhaps politically consequential than others.3 Here, we focus on how political fragmentation gives courts space to take more independent action. Elected politicians have a variety of tools they can use to influence the actions of courts, such as appointing justices to their liking, passing legislation that overrides court rulings, or possibly even amending the constitution. But politicians are only able to undertake those measures to the extent that they are sufficiently coherent as a group to amass the legislative votes needed in each case. This line of argument points to political fragmentation as a crucial factor for predicting judicial independence, or to its converse, political cohesion, for predicting a weak judiciary.