Interbranch Conflicts, Public Awareness, and Instrumental Support for Courts

• In Event: Poster Session: Judicial Politics & Federalism and Intergovernmental Relations
  In Poster Session: Poster Session: Judicial Politics

Abstract

An aware and attentive public is critical for judicial institutions. Contrary to conventional wisdom, recent research has suggested that contextual conditions moderate the relationship between public awareness and support for courts. Where the institutional and political environment constrains the performance of courts or incentivizes them to engage in strategic judicial decision-making, increasing public attention about court rulings can undermine the legitimacy of judicial institutions. This is especially true among highly aware or sophisticated citizens as they can detect instances of insincere decision-making.

An implication of this literature is that courts operating under such hostile environments have incentives to rule in favor of incumbents on salient issues and be less transparent about their pro-government decisions. Yet courts around the world do—frequently and publicly—rule against incumbents even on highly salient policies and in contexts of institutional and political constraints on judicial independence. What explains this behavior?

I propose a novel theory of judicial decision-making by bringing together existing models of the separation of powers from the comparative politics literature and recent work on instrumental public support for courts from the American politics literature.

I argue that if citizens evaluate judicial institutions through partisan lens, courts have incentives to go public about challenging the government, despite elites’ (credible) threats of noncompliance or defiance. In particular, I suggest that, when courts rule against the government, political backlash can in fact increase (instrumental) beliefs in judicial legitimacy by facilitating coordination among citizens politically misaligned with the incumbent. I present descriptive evidence in support of the argument's logic and propose a series of survey experiments to test implications of my theory.

My account has important implications for our understanding about the conditions under which we should expect independent judicial behavior as well as the mechanisms by which the institutional context influences the well-known relationship between public awareness and perceptions of courts’ legitimacy. Importantly, the proposed conditions and mechanisms differ from existing research on both comparative interbranch politics and American judicial politics.

Author

• Martín Gandur, Florida State University