The Costs (and Benefits) of Attacking Courts

• In Event: The Public Politics of Judicial Independence

Abstract

In democracies around the globe, independent courts are under attack. Populist leaders in countries as diverse as Venezuela, the United States, Hungary, South Africa, Poland, and Bolivia have recently proposed—and, in some cases, implemented—court curbing proposals designed to undermine the institutional independence of the national high courts and curtail the institutional separation of powers. What explains these interbranch assaults?

Traditional models of interbranch relations suggest that these populist leaders attack the courts at their own peril. Indeed, that the public is willing to punish incumbents electorally for attacks against high courts is an identifying assumption in many prominent theoretical models of comparative judicial independence and power. Faced with the threat of public backlash for non-compliance or inter-branch assaults, conventional logic suggests, incumbents should have no recourse but to respect the court as an institution and to comply with its decisions. This existing body of knowledge, therefore, would predict swift electoral punishment for leaders’ attacks on high courts.

We are not so sure. Theoretically, it is far from obvious why the public would come to the rescue of an unelected court, punishing an incumbent for transgressing a court’s institutional integrity. After all, the public’s interests may well be more aligned with the incumbent than the court by virtue of the electoral connection. Empirically, we have scant evidence as to how (or if) citizens will punish elected leaders for attacks on courts. To compound the problem, nearly all research on public support for judicial institutions examines the United States Supreme Court, an institution that is anomalous for the remarkably high level of public institutional commitment. Fundamentally, we do not know under what conditions citizens will stand up to an incumbent to protect a high court. Given the prevalence of these attacks worldwide, this is a question of both academic and popular interest.

Our research aims to delineate the individual and institutional conditions under which citizens will defend a court whose autonomy an incumbent seeks to undermine. In this paper, we present the results of a series of survey experiments conducted in the United States, which randomly exposes respondents to information regarding incumbents’ attempts to meddle with courts. Our results present a stinging rebuke to the conventional wisdom: the public not only punishes but also rewards incumbent presidents for their overt attacks on the courts. Moreover, the extent to which incumbents benefit from interinstitutional attacks depends both on citizens’ partisanship and their preexisting democratic values. These results call into question decades of research about interbranch relations by suggesting that leaders may benefit from undermining the separation of powers and independent judiciaries, threats and attacks that have long thought to be kryptonite for elected leaders.

Authors

• Amanda Driscoll

• Michael J. Nelson, The Pennsylvania State University