Why Congressmen Avoid Retaliation against the Supreme Court?

• In Event: Poster Session: Legislative Studies & American Political Economy
  In Poster Session: Poster Session: Legislative Studies

Abstract

In recent years, scholars have become increasingly interested in the judicialization of politics - “the ever-accelerating reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies” (Hirschl, 2006). This is a worldwide trend; several countries have observed courts becoming a more prominent actor in the decision-making process. While many studies have tried to explain the motivation of this phenomenon, few attempts have been devoted to raising pieces of evidence empirically. This study aims to experimentally investigate why congressmen occasionally might support an active and independent judiciary. The Brazilian political environment provides an adequate background to understand why Congressmen do not backlash to the increasing interference of the Supreme Court in legislative matters. In the last decade, Brazilian Supreme Court not only has ruled about sensitive topics to politicians, but in some instances have also created laws (Pimentel, 2020; Arguelhes, 2017; Arguelhes et. Ribeiro, 2016).
One of the plausible reasons why elected officials stand for an independent constitutional court relies on the fact that a convergent judiciary can be a useful agent of the legislature in reducing policy uncertainty. While legislators cannot predict the outcomes of a proposed legislation, the judiciary can do it after observing its consequences15. Under these circumstances, the critical post-enactment examination of a friendly court tailors the legal system more effectively than the legislature could acting by itself, by removing what would be universally regarded as failed legislation. This strategy allows legislators to keep their popularity because a third party can adjust ex-post the undesired or unpredictable effects of legislation (Voigt et. Salzberger, 2006; Whittington, 2003).
Politicians are predominantly focused on the next election cycle. Their strategies need to consider the ballot result. In other words, they are more frequently targeting short-term results rather than long-term ones (Voigt et. Salzberger, 2006; Whittington, 2003). However, what might bring popular short-term results can be harmful in the long run. It seems fruitful to allow courts to adjust the content of legislation. The possibility of legislation review is a win-win situation for the politician. He/she can enjoy the popularity of the approval of legislation that will bring celebrated outputs in the short term (consequently he/she can gather the electoral benefit of it). He/she can let the courts do the unwelcomed task (i.e. fixing the legislation in an unpopular fashion). Additionally, he can show himself off by criticizing the court for the decision (although he/she probably acknowledges that this is the best choice for the long term).
Another relevant aspect of a convergent court lies in the effectiveness of an independent judiciary in controlling the actions of nonlegislative political entities. When the judiciary aligns closely with legislative preferences, it becomes a valuable ally for Congress in curbing the activities of other political actors. In an environment characterized by institutional competition, Congress may prioritize the political autonomy of a judiciary capable of overseeing the actions of diverse institutions. This reasoning extends to the national executive branch. In a political system where the executive is independent of the legislature, such as in a presidential system, a politically insulated judiciary can serve as a beneficial partner for the legislature in restraining the executive from pursuing divergent policies or expanding its authority at the expense of the legislature. Legislatures are inclined to support initiatives aimed at shielding the judiciary from undue executive influence, and vice versa. Instances of early congressional impeachments of federal judges were fueled by concerns about excessive judicial-executive entanglements (Whittington, 2003).
We will analyze the data using a conjoint survey, a method that has the capacity to overcome various limitations encountered by observational and alternative experimental designs. It allows us to have a deeper understanding of Congressmen’s priorities because we can compare the relative importance of each attribute. For example, we can compare Congressmen’s preference for a judiciary that vetoes Executive Branch actions against their preference for a judiciary that reviews pork distribution. We can also investigate whether Congressmen accept a judiciary that intervenes in the party and electoral organization but also decides about controversial topics that the legislature does not want to deliberate. This analysis interacts different attributes of the political scenario, what is critically important for understanding the trade-offs Congressmen face in allowing (or not) the judiciary to be strong and active when its decisions conflict with the legislative agenda.

Authors

• ANDRE LUIZ MEDEIROS KLEVENHUSEN, Fundacao Getulio Vargas

• Carlos Pereira, Getulio Vargas Foundation