Constitutional courts around the world vary in the transparency they provide surrounding their rulings. While some courts by law never publish individual judges’ votes on court decisions, other courts always publish these votes by norm. However, if a court can choose how much information to reveal about its internal agreement, what will it choose to do? Conventional wisdom in judicial politics holds that unanimous rulings strengthen courts’ institutional legitimacy. Therefore, if judges act in the best interest of the institution, they will keep their votes secret. However, we argue that judges’ incentives to think institutionally decrease when external actors are paying attention to court rulings. When the media covers a case prior to the court’s decision in the case, we posit that individual judges’ incentives to seek personal accountability for their positions will be elevated because there is a greater chance that outside observers will become aware of these individual positions. We test our argument on the German Federal Constitutional Court, a court which possesses discretion over its vote publication procedures. We find that prior coverage of a court decision increases the probability that the Court will release information about individual votes. Furthermore, as the amount of prior media coverage increases, the probability that the Court will release information about internal disagreement increases at a higher rate compared to the rate at which they will release information about agreement. Overall, our findings illustrate the unique challenges of coordinating behavior on collegial courts and speak to the broader literature concerning the evolution of norms of dissensus on other courts around the world.
Leeann Bass (Emory University)