Can Courts be Bulwarks of Democracy? Judges and the Politics of Prudence

Session Submission Type: Author meet critics

Session Description

Democracy is under assault across the globe. A critical question for the international community concerns whether there are particular institutions that might prevent democratic breakdown. One perspective looks to the courts for this purpose. Our book, forthcoming with Cambridge University Press, evaluates this possibility, by asking under what conditions, if any, can courts be defenders of democratic regimes? And, if they can, how do they do it?
Our book presents an argument that identifies conditions under which courts can promote democratic regime survival. We argue that courts can influence regime instability by affecting the informational problem inherent in policing regime rules. They do so in three ways: (1) by providing a mechanism through which private information about the rationale for policy choices that arguably violate a regime rule can be credibly communicated between leaders and the opposition, (2) by encouraging leaders to less frequently make decisions that raise concerns about rule violations, and (3) by encouraging the opposition to accept more often potential rule violations. The central implication of this argument is that courts influence democratic regime survival primarily by encouraging prudence on the part of leaders and the opposition. Although we can identify instances in which courts make decisions stopping arguably undemocratic actions, it is the second face of judicial power that is ultimately essential to the ability of a judicial system to make democratic regimes stable. To have this effect requires four conditions: (1) competing social groups must be minimally committed to democratic competitions, (2) courts must enjoy a minimal degree of independence from governments, (3) judges must be willing to risk non-compliance with their orders, and (4) non-compliance must be minimally costly for governments and their agents. If the first condition fails, courts will be completely irrelevant to regime outcomes. If the second or third conditions fail, although judges could influence regime outcomes, they will not try. If the fourth condition fails, judges might attempt to influence regime outcomes, but they will not be successful. The bottom line is that while courts can be bulwarks, it certainly does not follow that they will be bulwarks in all cases.
Our book knits together and elaborates upon ideas from related but separate research traditions. We place robust literatures on the political economy of regimes and comparative law and politics into a direct conversation. This involves careful conceptualization and theoretical modeling, as well as a flexible yet rigorous approach to empirical analysis. What emerges from this approach is a perspective on law and democracy that is realistic about the possibilities for and limits of judicial solutions to essential challenges of democratic rule.
The book draws on a 115 years of data from a global sample, made possible in part through our team's relationship with the Varieties of Democracy Project (V-Dem) and in part as a result of our own unique contributions to measurement. These data provide us the ability to offer not only a novel description of the challenges that courts and democracies around the globe are confronting but also, when possible, inferential progress in understanding how courts provide democracies a measure of protection against breakdown. We both summarize existing scholarship and present new evidence on the relationship between judicial independence and actions that may reflect prudence on behalf of governments and oppositions. Namely, we investigate extraordinary actions on behalf of the government (emergency declarations), extraordinary reactions on behalf of the opposition (coups), and the survival of democracy. We show that independent courts lower governments' propensity to declare emergencies in the wake of natural disasters, when consensus over whether such events are truly extraordinary is relatively low. When consensus is higher, in the wake of terrorist attacks, courts have no effect on dissuading such declarations. We further show that judicial independence is associated with lower probabilities of coups and democratic breakdowns. Critically, we show that non-compliance is not positively associated with coups or breakdown. These findings suggest that while attacking courts in democracy can be profoundly destabilizing, some degree of non-compliance with judicial orders can be a part of a healthy democratic system.

Our proposed panel will brings together diverse scholars with a deep commitment to linking scholarship in judicial politics to fundamental questions about political regimes. Panelists who have agreed to serve as critics include: Gretchen Helmke, Professor of Political Science at University of Rochester, Daniel Brinks, Professor of Political Science at UT-Austin, Monika Nalepa, Associate Professor at University of Chicago and Fiona Shen-Bayh, Assistant Professor at William and Mary.

Sub Unit

• Division 44: Democracy and Autocracy

Chairs

• Gretchen Helmke University of Rochester

• Monika Nalepa University of Chicago

Discussants

• Daniel M. Brinks University of Texas at Austin

• Fiona Shen-Bayh William & Mary

Presenters

• Jeffrey Staton Emory University

• Christopher M. Reenock Florida State University