The judiciary in any democratic system is unable to enforce its own decisions. However, courts are still instrumental in shaping politics and society. Scholars traditionally posit that the judiciary’s influence is based on the public support courts enjoy or the strategic benefits of an independent judiciary for the political branches. Both perspectives shift the focus away from judicial decisions as a means available to courts to exercise power. This project emphasizes the agency of courts themselves by focusing on the role of judicial decisions as a central component of the power of the judiciary in the interaction with political actors.
Courts exert multiple types of power. On the one hand, courts present decisions with direct influence on the political arena. In particular, courts increasingly use directives which are statements directed at political actors to request an action in responds to a constitutional issue. This is what I call the first face of judicial power. On the other hand, past judicial decisions are signals which lead political actors to alter their behavior when drafting policies. This allows courts to exert indirect influence in the political arena and I call this the second face of judicial power. To understand judicial power this project assess both faces of judicial power, addressing two questions: first, when do judges choose one judicial verdict over the other? Second, to what extent do political actors anticipate judicial decision-making?
In order to answer these questions, I design a separation-of-powers model which incorporates a court’s ability to present its own policy preferences in the form of direc- tives. This Judicial-Policy-Dialog game (JPD game) yields a number of implications about judicial-political interactions; most prominently, changes in judicial choices (1) to not justify decisions, (2) to justify decisions, or (3) to present directives are driven by the government’s costs to legislate and the court’s costs from an evasion of a decision (first face of judicial power). Moreover, the government anticipates judicial responses and changes its own behavior preemptively when presenting policies (second face of judicial power). The JPD game generates hypotheses independent of judicial votes and is a general one, applicable to high courts in any (democratic) political system. An empirically-driven cross-European comparison shows that the German Federal Constitutional Court (GFCC) is a representative case well suited to study the two faces of judicial power.
I test my hypotheses using a novel database on the GFCC and extend this database by operationalizing complex concepts that define costs in judicial-political interaction. Multinomial logistic regressions show that as the costs from evasion increase, the court is more likely to use directives. This suggests that directives are a means to draw attention to decisions when implementation is essential to the court. However, the court behaves in a risk-averse manner when the government’s costs to legislate are high, therefore avoiding judicial outcomes that require a political response. Nevertheless, this behavior does not decrease the court’s political influence. Instead, a causal analysis with measures obtained from computer-assisted text analysis shows that political actors preemptively account for judicial decisions when drafting new policies.
The findings extend beyond those of previous studies that only use dichotomous measures of judicial choice. Moreover, assessing judicial choices based on the content of decisions has implications for the growing literature on the strategic use of opinion clarity by judges. In addition, the designed model does not rely on published judicial votes. Therefore, the findings help to open the black-box of strategic judicial behavior on understudied constitutional courts, which often do not publish votes. Finally, this study provides systematic empirical evidence for political self-restraint in anticipation of judicial review. Overall, this project speaks to the substantial development of the judicialization of politics.
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