The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Political Supports for an Independent Judiciary
Observing Israel (and the United States) through the lens of political science
Empirical social science does not take independent judiciaries as a given. Judicial independent might be normatively valuable, and it might even be enshrined in a constitution, but realizing and maintaining an independent judiciary is a long-term political project. Moreover, as Alexander Hamilton pointed out, judiciaries are a relatively weak branch of government, which suggests that their effective independence is fairly fragile.
Broadly speaking, there are two kinds of theories about the political supports for an independent judiciary. The two kinds of approaches are not mutually exclusive, and they are probably both significant to some degree or another. There are lots of specific variations within the broad types. But such theories are concerned with trying to explain the puzzling independence of courts.
One class of theories emphasizes elite support for judicial independence. This has generally been the focus in my work. Political Foundations of Judicial Supremacy, for example, emphasized the strategic calculations of national political leaders like presidents make in finding an independent judiciary to be politically useful. Presidents have benefited from being able to shift blame for unpopular policy outcomes to the unelected courts and to pass off politically contentious policy decisions to ideological allies in the judiciary. Repugnant Laws emphasized how the U.S. Supreme Court has husbanded political authority by cautiously exercising judicial review in a way that does not force a confrontation with ascendant political majorities. Or as I noted in a piece focusing on interaction of the Court and Congress,
Legislative support for judicial independence in the exercise of judicial review depends on a political cost-benefit analysis by legislators. If independent judicial review is more politically costly to legislators than it is beneficial to them, then the legislature is likely to seek to subvert judicial independence and to look for ways to sanction the courts. If judicial review is, on the whole, beneficial to legislators, then they are likely to support, or at least acquiesce in, an independent judiciary.
Where a fairly unified and electorally stable coalition emerges, courts are kept on a short leash. Where courts obstruct politically important policies or give incumbent governments nothing but losses, the judges are likely to get slapped.
Another class of theories emphasizes mass support for judicial independence. These theories contend that the public will impose a cost on politicians who threaten judicial independence. Some of this work examines the "diffuse support" for the courts in public opinion data. Diffuse support refers to a "reservoir of favorable attitudes or good will that helps members to accept or tolerate outputs to which they are opposed to the effects of which they see as damaging their wants." By contrast, specific support refers to favorable attitudes about the policy outputs of the courts. Courts might be "legitimate" in the public's eyes because they produce the policies or support the groups that a majority of the public also wants or supports, or they might be regarded as legitimate despite the fact that they produce policies that are themselves unpopular. One way in which that diffuse support might be expressed is through public opposition to judicial reform or political challenge to the courts, while the lack of diffuse support might cash out in public support for judicial reform. Even if politicians find an independent judiciary to be inconvenient, mass support for the courts can prevent politicians from doing anything about it.
The events in Israel provide a dramatic demonstration of both theories. Prime Minister Benjamin Netanyahu has advanced a proposal for judicial reform. Such proposals, like Court-packing proposals in the United States, reflect the sharp political divergence between the judiciary as currently constituted and the currently dominant political coalition. A politically confident political coalition decided the judiciary was too obstructionist to its valued policies, and so it tried to rein in the independence of the judiciary. An elite approach to judicial independence would expect as much. But in response, a huge swath of the mass public have taken to the streets to protest against the proposal and in favor of the courts. Diffuse support for the courts in the mass public in action. Such a display will often scuttle the political attack on the courts, and the possibility that something like this might happen is an important deterrent to court-curbing policies.
With Court-packing very much in the air in American politics, one wonders whether the U.S. Supreme Court could count on a similar public backlash to protect an independent judiciary here. Seems unlikely. If so, that's one important pillar supporting judicial independence gone. The Roberts Court better hope Republicans keep winning elections.