Party Types and Judicial Independence: Revisiting a Formal Model

• In Event: Judging Independence: Perspectives on the Power and Autonomy of the Courts

Abstract

Do certain parties pose a greater threat to judicial independence than others under the same circumstances? Political insurance theories of judicial independence argue that when an incumbent actor expects to lose office, he will likely tie his own hands and empower an independent court as a means of protecting his future self. By this account, the expectation of government turnover due to political competition offers incentive for incumbents to support independent courts out of self-interest, thus sustaining judicial independence. Yet not all cases follow this pattern in practice: in some instances, parties oppose independent courts despite high political competition and likelihood of alternating government. To explain such deviant cases, I revisit Stephenson's game theoretic model and highlight two variables related to asymmetrical party characteristics that are often overlooked in empirical works. Using comparative statics, I show that 1) the extent to which each individual party is forward-looking and 2) each party's tolerance for risk play critical roles in sustaining independent courts as a stable equilibrium. Parties that are less forward-looking and less risk-averse are more inclined to refuse cooperative strategies toward courts and, therefore, pose a greater threat to judicial independence. I then argue that a real party type - anti-system parties - possesses these characteristics and provide preliminary large-N analysis of the relationship between anti-system parties and judicial independence. More broadly, this analysis supports a party-centric approach to studies of political insurance.

Author

• Alice Cho Timken, Syracuse University