The Corrosive Effect of Polarization and Inequality on Judicial Independence

• In Event: The Public Politics of Judicial Independence

Abstract

Widening divergences among the public make it more difficult for the elected branches to be responsive to the broad majority of citizens and easier for subgroups to influence policy in their favor.

Growing income inequality and polarization are two mechanisms that exacerbate such divergences. Income inequality leads to policies that favor the affluent (Gilens 2012; Hacker and Pierson 2010), whereas polarization makes compromise—and therefore policies that are likely to benefit a majority—less likely. In both cases, elected branches become more responsive to a subgroup of the population.

As the ‘focal point’ of divergent public interests (Weingast 1997), the judiciary’s role of preserving consensus is likely to be impacted by these polarizing forces. The dynamics of growing income inequality and of polarization place the court in the difficult position of choosing between two masters: the interests of the broad public (which confers legitimacy to the court), and of the increasingly subgroup-focused government (on which the court depends on for enforcement).

I argue that the court has no winning strategy in such a position. It can either align with the government’s new interests, jeopardizing its de facto independence, or it can remain responsive to the broader public, risking court curbing measures that threaten both its de jure and de facto independence.

To test this claim I conduct a cross national time series analysis of the effects of income inequality and polarization on judicial independence. A second analysis explores whether governments that are subject to increased income inequality and political polarization are more likely to attack the courts. The results show that growing inequality and widening polarization threaten judicial independence and help explain the limits of independent courts in preventing democratic backsliding in an era of public dissensus.

Author

• Susanne Schorpp, Georgia State University