The Two Faces of Judicial Power: Dynamics of Judicial-Political Bargaining (Book)

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This book shows that constitutional courts exercise direct and indirect power on political branches through decision-making. The first face of judicial power is characterized by courts directing political actors to implement judicial decisions in specific ways. The second face leads political actors to anticipate judicial review and draft policies accordingly. The judicial–political interaction originating from both faces is herein formally modeled. A cross-European comparison of pre-conditions of judicial power shows that the German Federal Constitutional Court is a well-suited representative case for a quantitative assessment of judicial power. Multinomial logistic regressions show that the court uses directives when evasion of decisions is costly while accounting for the government’s ability to implement decisions. Causal analyses of the second face of judicial power show that bills exposed to legal signals are drafted accounting for the court. These findings re-shape our understanding of judicialization and shed light on a silent form of judicialization.

Dissertation Award, Deutsche Vereinigung für Politikwissenschaft (German Political Science Association); Laudation by Professor Markus Tepe (University of Oldenburg) [in German]
– Lorenz-von-Stein Prize, Mannheim Centre for European Social Research (MZES)
– Award by the Prof. Dr. Anna and Prof. Dr. Jörg Jiri Bojanosky Foundation

“Buy this book! Not only will you learn about one of Europe’s most influential courts; you’ll also rethink what you know about courts more generally. That’s because Engst has written a game changer. Theoretically, The Two Faces of Judicial Power pushes back on the idea that courts depend on outsiders to shape their power and instead argues that through their decisions, judges can exert direct and indirect influence on political actors. Empirically, the book is a breath of fresh air. In place of the usual measures of judicial choice is an innovative content analysis of judicial decisions—one that could be adapted to many different contexts.” — — Lee Epstein is Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis

“Recent decades have seen a rise in the power of courts, which has been followed by political tensions around judicial decisions and challenges against judicial independence. Scholars have invested a great deal of time and effort trying to understand the interactions between constitutional courts and legislatures, but few are able to match the theoretical rigor, empirical novelty and methodological sophistication of Benjamin Engst’s Two Faces of Judicial Power. The book constitutes a major advance in the field of judicial politics in Europe and beyond.” — — Daniel Naurin is Professor of Political Science at the University of Oslo

“This book provides something I had not thought was possible—robust evidence that legislators limit themselves when they face the threat of constitutional review. It is brilliant work that furthers our understanding not just of the German Federal Constitutional Court, but all constitutional courts engaged in the abstract constitutional review of legislation.” — — Chris Hanretty is Professor of Politics at Royal Holloway University of London

“This compelling study of constitutional review in Germany is a welcome addition to the literature. Engst reminds us that the influence courts have over public policy lies not only in their power to strike down laws but in the way that this power influences the shape of pending legislation. He offers a careful theoretical account as well as an innovative approach to revealing the second face of judicial power.” — — Jeffrey K. Staton is Professor of Political Science at Emory University

Published with Palgrave Macmillan.