OTHER BRANCHES OF GOVERNMENT
In addition to his relationship with the other judges on the bench, a high court judge may be influenced by his particular institutional context—in particular by the relationship of the court and the legislature. A high court judge may decide based on different considerations than the rest of the judiciary. unlike most lower court judges, a high court judge will not typically consider the possibility of career advancement, or the risks of being removed from office or having her rulings reversed. Instead, the factor external to the court that may primarily constrain her may be the risk of political backlash by other branches of government, which can take a variety of forms.
The legislature may retaliate against the judiciary by enacting new laws or rules that respond to or reverse prior decisions. In Canada, for example, the judiciary has the power to review the constitutionality of primary and delegated legislation; however, section 33 of the Canadian Charter of Rights and Freedoms allows the federal and provincial legislatures to declare that a statute shall operate notwithstanding a violation of the fundamental freedoms, legal rights, or equality rights. In the united States, the formal separation-of-powers doctrine prevents other branches of government from directly interfering with the judiciary. However, Congress can enact new legislation or constitutional amendments that effectively nullify the Supreme Court’s interpretation of a provision. Congress can potentially even suspend or withdraw the Court’s jurisdiction to review particular statutes or decisions. A judge may be partly motivated by a desire to avoid such action by legislatures.
A legislature or the executive may also retaliate against an unpopular decision by high courts in other ways, such as imposing indirect burdens through budget constraints or altering the appointments process. A famous American example is the “switch in time that saved nine”: in order to prevent the Supreme Court from striking down his New Deal legislation, President Roosevelt threatened that he would enlarge the bench and appoint new justices with more favorable inclinations. To avoid that, Justice Owen Roberts changed his position and voted to uphold the legislation. The retaliation may be more personal. For example, in New Zealand, where many justices are knighted but not all, the conferral of knighthoods is a potential way for the government to reward or sanction justices if it wishes.
If judges are partly motivated by a desire to influence public policy, they will have clear incentives to avoid reversal or backlash, and may attempt to make decisions that reflect the policy agendas of the political parties currently in power. It may be that “given the institutional constraints imposed upon the Court, the Justices cannot effectuate their own policy and institutional goals without taking account of the goals and likely actions of the members of the other branches” However, although this approach seems rational, it is not clearly the case. Richard Posner, for example, argues that it is unrealistic to claim that judges strategically base their statutory interpretations on such specific extralegal factors. Supreme Court justices may not be constrained by other political actors, either because these institutions are likely to share the same policy goals, or due to the institutional safeguards that insulate the court from external interference and allow justices to advance their sincere preferences.
This tendency to be concerned about how other institutions will react may depend on a range of factors beyond just the party in power. High courts may be more willing to intervene in the decision-making of other governmental branches in countries that have recently introduced a new constitutional framework. For example, the policy-making roles of the South African Constitutional Court, and Indian and Israeli Supreme Courts have been linked to their relatively recent establishment. As their institutional roles have not been formally delimited to the same extent as high courts in other nations, these courts may be less constrained by other branches of government, and able to play a more active role in shaping their emergent political systems. Relatedly, internal governmental tensions may provide an opportunity for high courts to advance specific policy goals while bolstering their own legitimacy. Several authors suggest that the Supreme Courts of India and Israel became particularly influential by establishing an active role during periods of political instability. Further, during periods of political tension such as a national security crisis, judges may alter their behavior and become more or less willing to intervene against government decisions.
As a general matter, we will start with the most basic hypothesis relating to the risk of retaliation or override by the government of the day:
H4: Judges will alter their votes depending on the political leanings of the government in power at the time of the court decision.
Justices on the uS Supreme Court appear at least at times to take into account the preferences of other branches of government. For example, the Court was more likely to adjust its policy goals to reflect the preferences of the current Congress and president than it was to accommodate the enacting Congress in the period 1967 to 1990, which may be due to a desire to avoid legislative override.104 A similar constraint or influence occurred with respect to the Court’s interpretation of the National Labor Relations Act between 1949 and 1988, affecting the likelihood of a pro-union decision.105 Although judges with strong ideological positions tend to vote in line with their personal goals, congressional preferences appear to at least influence the behavior of moderate justices.106
The judges may be more closely attuned to the preferences of other governmental actors in particular cases. For example, judges may be sensitive to both
Weinshall-Margel, “Judicial Setbacks”]; Yoav Dotan, “Judicial Rhetoric, Government Lawyers, and Human Rights: The Case of the Israeli High Court of Justice during the Intifada” (1999) 33:2 Law and Society Review 319 [Dotan, “Judicial Rhetoric”]; Epstein et al., “Crisis”, supra note 103, n. 42 (finding the US Supreme Court was significantly more likely to curtail individual liberties during periods of war or other security crises in the period 1941-2001).
- 104. Eskridge, supra note 97 at 390 (also finding that the Court’s interpretations of federal statutes were more likely to be reversed by Congress when they revealed an ideologically divided Court, relied on the statute’s plain meaning, and ignored legislative signals, or ruled against federal or state governments (at 334)).
- 105. Pablo Spiller & Rafael Gely, “Congressional Control or Judicial Independence” (1992) 4:3 Rand Journal of Economics 463, n. 137. Another early study by Rohde supports the idea that split decisions may be subject to further scrutiny, and suggests that the justices may strategically respond by forming larger majority coalitions when they perceive a threat to the judiciary. Studying civil liberties decisions during the Warren era, he found that 40 percent of the majority coalitions were minimum-winning (i.e., composed of five judges) and only 8 percent were unanimous. However, when a threat was perceived, the unanimity rate rose to 26 percent and minimum-winning coalitions only occurred 23 percent of the time. Rohde, “Policy Goals,” supra note 9 at 212, 218, n. 20.
- 106. Epstein et al., “National Policymaker,” supra note 5 at 610. See also Mario Bergara, Barak Richman & Pablo T. Spiller, “Modeling Supreme Court Strategic Decision Making: The Congressional Constraint” (2003) 28:2 Legislative Studies Quarterly 247 (also finding that both judicial ideology and political constraints influence the Supreme Court’s decision-making, and that the Court’s decisions reflect strategic responses to the preferences of both Congress and the president).
the risks and implications of non-compliance or backlash. Justices on the US Supreme between 1951 and 2007 appeared to be more likely to take into account the preferences of Congress, the president, and the general public in cases that require compliance by the other branches of government. uS Supreme Court justices were more likely to vote ideologically during constitutional challenges to legislation (as opposed to mere statutory interpretation) in the civil rights and liberties cases decided from 1953 to 2004, particularly when a state enacted the impugned statute rather than the federal government. Judges may have been more willing to advance their preferences when there was greater authority for the Court’s decision, whereas deference to the federal government and the risk of legislative override or non-compliance prompted more moderate results.
Conversely, however, exercising the Court’s constitutional authority to strike down a federal statute is likely to create hostility between Congress and the Court (although possibly less so where a different party controlled Congress at the time of enactment and the time of the Court’s decision). Although it will be more difficult for Congress to overrule the decision, any attempts to do so may seriously damage the Court’s perceived legitimacy, making the Court more sensitive to the general preferences of the sitting Congress and the president in constitutional cases. Further, the constitutional provisions themselves in some cases may constrain such ideological voting, such as where conservative judges on the Supreme Court of Canada were less likely to vote attitudinally in the immediate aftermath of the passage of the Canadian Charter of Rights and Freedoms. Moreover, although the Canadian Charter has a section
(section 33) permitting the legislature to override court decisions under the Charter,111 the Court may have been felt less constrained in imposing its policy agenda at times when there was lower support for legislative use of the override.112
In examining our data for 1970 through the early 2000s, we found little evidence of a connection between how judges on high courts vote and a simple measure of the politics of the government in power at the time of the decision. One possibility is that judges, either liberal or conservative, would be more likely to vote in a liberal direction if the government of the day is liberal. However, we did not find any such effect except in the uK.113 In the uK, a judge was more likely to vote in a liberal direction if a liberal government was in power, though the effect was small (about 3.5 percent).114 The results remained the same even if we 42:2 American Review of Canadian Studies 236 (also examining the impact of the elimination of appeals from the Supreme Court of Canada to the Privy Council in 1949).
- 111. Peter W. Hogg & Allison A. Bushell, “The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing after All)” (1997) 35:1 Osgoode Hall Law Journal 75; Peter W. Hogg, Allison A. Bushell Thornton & Wade K. Wright, “Charter Dialogue Revisited: Or ‘Much Ado about Metaphors’” (2007) 45:1 Osgoode Hall Law Journal 1; Kent Roach, “Dialogic Judicial Review and Its Critics” (2004) 24 Supreme Court Law Review 49.
- 112. Christopher P. Manfredi, “Strategic Behaviour and the Canadian Charter of Rights and Freedoms” in Donald E Abelson, Patrick James & Michael Lusztig, eds, The Myth of the Sacred: The Charter, the Courts, and the Politics of the Constitution in Canada (Montreal: McGill- Queen’s University Press, 2002) 147 (using a strategic model to explain the Supreme Court of Canada’s decisions in two politically contentious cases decided a decade apart (R v Morgentaler,  1 SCR 30, 44 DLR (4th) 385 and Vriend v Alberta,  1 SCR 493, 156 DLR (4th) 385) and finding the Court was more willing to impose its policy agenda on legislative actors in the latter case, with the most influential factor appearing to have been the declining popularity of section 33 of the Charter). Similarly, Supreme Court of Canada justices invalidated legislative or regulatory acts in about a third of constitutional rights cases between 1982 and 2008 but the Court was significantly more likely to uphold the statute when intervening government actors or organized interest groups opposed invalidation. Nedeljko Radmilovic, “Between Activism and Restraint” in Donald E Abelson, Patrick James & Michael Lusztig, eds, The Myth of the Sacred: The Charter, the Courts, and the Politics of the Constitution in Canada (Montreal: McGill-Queen’s University Press, 2002), at 75, n 49 [Radmilovic].
- 113. We ran logistic regressions with the dependent variable being whether the judge voted in a liberal direction, and the independent variables being whether the government was liberal (see Appendix A for a description of our coding of governments), the ideology of the judge (using either the party of the appointer or the judge’s lifetime liberal voting rates in criminal cases), the direction (liberal or conservative) of the lower court decision, the area of law, and a time trend. The government variable was not statistically significant at the .05 level in the regressions for Canada, the United States, Australia, or India.
- 114. This result was significant at the .01 level using either the party of the appointer or the lifetime liberal voting rate as a measure of the judge’s ideology (and the effect being slightly larger when using lifetime liberal voting rate (almost 5 percent).
looked for whether liberal or conservative judges reacted differently to different orientations of the government—that is, did liberal judges react differently to a conservative government than a conservative judge did to a liberal government.
Another possible effect of a judge considering the preferences of the government in power would be that she would be more likely to vote in favor of a government whose preferences are not aligned with her own, controlling for the underlying nature (liberal or conservative) of the lower court decision being appealed. In our data, we found that judges’ votes in favor were not affected by the nature of the government in power, except in Canada. However, in Canada, the judges were influenced in a direction consistent with the proxy for their ideology. Conservative judges were about 4 percent less likely to find in favor of the government if a liberal government was in power as opposed to a conservative government; a liberal judge was about 1 percent more likely to find in favor of a liberal government than a conservative government.
The data we have for these high courts between 1970 and the early 2000s, then, do not provide strong evidence of judges being influenced by the preferences of the government in power at the time of the decision. Part of the reason for the lack of a correlation between voting and the political leanings of the government of the day may of course be due to the crude measure of politics used. However, it may also stem from other mechanisms the court may use to avoid backlash and yet still allow voting that does not accord with the preferences of the current government. For example, the court may tend to shift toward viewing the question as constitutional if the judges are worried about the legislature not complying with a ruling. In US Supreme Court cases involving federal statutes between 1953 and 2000, the Court was more likely to base a decision on constitutional grounds as its ideological distance from Congress increases. Given the difficulty of challenging the court’s constitutional interpretation, the court may be responding to the risk of legislative override by strategically choosing legal instruments that increase the costs of congressional retaliation.
A court may also soften the blow of not agreeing with the current government. For example, the Supreme Court of Canada has increasingly used suspended declarations of invalidity (that is, delaying the time until the legislation is declared invalid) to minimize institutional conflict: 10.5 percent of the Court’s invalidations were suspended in the 1980s, 27.5 percent in the 1990s, and 60 percent in the 2000s. The chances of the court issuing a suspended declaration rather than an immediate declaration increased significantly when government interveners opposed invalidation. When reviewing governmental acts at the High Court of Justice, justices on the Israeli Supreme Court reduce institutional tensions by rejecting petitions for judicial review but pushing parties to settle out of court, or by dismissing applications after the government has agreed to modify its initial position. These strategies may allow the justices to indirectly attain their preferred results while avoiding conflicts that may damage their perceived legitimacy.
Finally, although legislative override is typically seen as a threat to the judiciary, there is also evidence that the US Supreme Court occasionally invites override of its decisions. A majority of the Court may, for example, favor the application of a particular legal rule but disagree with the resulting policy outcome. Instead of compromising to avoid negative policy implications, the Court can maximize its preferences by applying its preferred doctrine if it anticipates that Congress will find the policy result similarly unacceptable and develop a superior response. One study found that approximately 11 percent of the
Court’s interpretations of federal statutes between 1986 and 1990 included an invitation to override. Such invitations were more likely when the decision’s policy outcome diverged from the ideal points of the justices forming the majority coalition. The Court may then be attempting to balance its competing interests in “good policy” and “good law” by prompting the legislature to correct conflicts.
-  Epstein & Jacobi, supra note 1.
-  Posner, How Judges Think, supra note 8.
-  US Const. art. III (provides that the Supreme Court’s appellate jurisdiction is granted “withsuch Exceptions, and under such Regulations as the Congress shall make” at § 2, cl 2). In Exparte McCardle, 74 U.S. 506 (1869), the US Supreme Court affirmed that Congress had theauthority to suspend its statutory jurisdiction to review the denial of habeas corpus petitions.
-  Other countries lack similar constitutional guarantees of judicial review. The UK, forexample, lacks a written constitution as the basis for judicial review. The court’s role has beenexpanded by the Human Rights Act 1998, which allows the court to issue a declaration that anAct of Parliament is incompatible with the European Convention on Human Rights. However,declarations of invalidity do not invalidate the Act, nor are they binding to the parties in theproceedings that give rise to them. Human Rights Act 1998, (UK), c 42, s 4(6) [Human RightsAct]. They have not been used frequently; more often a court will merely interpret a statute insuch a way that it is compatible. Paterson, supra note 6 at 282; Human Rights Act, supra note499, s. 3 (1).
-  Chris Hanretty, “The Appointment of Judges by Ministers: Political Preferment in England,1880-2005” (2012) American Political Science Association 2012 Annual Meeting Paper 1 at 7-11.
-  In the 1930s Depression, the attorney-general asked superior court judges to refund aportion of their salary and, after they refused, none of them received a knighthood including the senior judge. Philip A. Joseph, “Appointment, Discipline and Removal of Judges inNew Zealand” in H.P. Lee, ed, Judiciaries in Comparative Perspective (New York: CambridgeUniversity Press, 2011) at 93.
-  McNollgast, “The Political Economy of Law: Decision-Making by Judicial, Legislative,Executive and Administrative Agencies” in A. Mitchell Polinsky & Stephen Shavel, eds, LawAnd Economics Handbook (North Holland, 2007), n. 2; Epstein et al., “National Policymaker,”supra note 5 at 585 (finding the US Supreme Court interprets statutes differently based onthe likelihood that a particular decision will be effectively reversed via new legislation, whichvaries depending on factors such as the ideological distance between the Supreme Court andCongress and between the Supreme Court and the president, or whether the political party thatenacted the statute is currently in power).
-  Posner, How Judges Think, supra note 8 at 29-30; William N. Eskridge Jr., “OverridingSupreme Court Statutory Interpretation Decisions” (1991) 101:2 Yale LJ 331 [Eskridge].
-  Robert A. Dahl, “Decision-Making in a Democracy: The Supreme Court as a NationalPolicy-maker (2001) 50:2 Emory Law Journal 563.
-  See e.g. Jeffrey A Segal, “Separation-of-Powers games in the Positive Theory of Congressand Courts” (1997) 91:1 American Political Science Review 28.
-  Further, this theory assumes that decisions supported by large majorities are more likely tobe perceived as legitimate by other governmental actors and members of the public. Therefore,judges that would otherwise concur or dissent may be more likely to join the majority duringespecially important or salient cases that are likely to be subject to increased institutional backlash. Rohde, “Policy goals,” supra note 9 at 215. We will discuss this issue further in Chapter 8.
-  Theunis Roux, “Legitimating Transformation: Political Resource Allocation in the SouthAfrican Constitutional Court” (2003) 10:4 Democratization 92; eh M. Salzberger, “JudicialAppointments and Promotions in Israel: Constitution, Law, and Politics” in Kate Malleson &Peter H. Russell, eds, Appointing Judges in an Age of Judicial Power: Critical Perspectives fromaround the World (Toronto: university of Toronto Press, 2006) 241 at 241; Venkat Iyer, “TheSupreme Court of India” in Brice Dickson, ed, Judicial Activism in Common Law SupremeCourts (New York: Oxford university Press, 2007) 121 [Iyer].
-  Iyer, supra note 101, n. 41; Yoav Dotan, “Judicial Accountability in Israel: The High Courtof Justice and the Phenomenon of Judicial Hyperactivism” in Moshe Maor, ed, Developments inIsraeli Public Administration (London: Routledge, 2002) 87 at 88-89.
-  See e.g. John Dugard, “The Judiciary in a State of National Crisis: With Special Referenceto the South African Experience” (1987) 44:2 Washington and Lee Law Review 477; LeeEpstein et al., “The Supreme Court during Crisis: How War Affects Only Non-war Cases”(2005) 80:1 New York University Law Review 1 [Epstein et al., “Crisis”]. See also MenachemHofnung & Keren Weinshall-Margel, “Judicial Setbacks, Material Gains: Terror Litigation atthe Israeli High Court of Justice” (2010) 7 Journal of Empirical Legal Studies 664 [Hofnung &
-  Matthew E.K. Hall, “The Semiconstrained Court: Public Opinion, the Separation of Powers,and the U.S Supreme Court’s Fear of Nonimplementation” (2014) 58:2 American Journal ofPolitical Science 352. See also Anna Harvey & Barry Friedman, “Pulling Punches: CongressionalConstraints on the Supreme Court’s Constitutional Rulings, 1987-2000” (2006) 31:4 LegislativeStudies Quarterly 533 (finding the likelihood of the Rehnquist Court striking a statute enactedby a liberal Congress increased dramatically (between 47 percent and 288 percent, dependingon the legislative model used) following the 1994 congressional election, when conservativestook control of both the House and Senate).
-  Brandon L. Bartels, “Choices in Context: How Case-Level Factors Influence the Magnitudeof Ideological Voting on the U.S Supreme Court” (2011) 39:1 American Politics Research 142, n. 143.
-  See also Jeffrey A. Segal, Chad Westerland & Stefanie A. Lindquist, “Congress, theSupreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model”(2011) 55:1 American Journal of Political Science 89 at 101. See also Bryan W. Marshall, BrettW. Curry & Richard L. Pacelle, Jr., “Preserving Institutional Power: The Supreme Court andStrategic Decision Making in the Separation of Powers” (2014) 42:1 Politics and Policy 37 at 4041; Keith E. Whittington & Tom S. Clark, “Ideology, Partisanship, and Judicial Review of Actsof Congress, 1789-2006” (2009), online: http://ssrn.com/abstradTh475660 at 12.
-  Susan W. Johnson, “The Supreme Court of Canada and Strategic DecisionMaking: Examining Justices’ Voting Patterns during Periods of Institutional Change” (2012)
-  We operationalized this effect with an interaction term between the party appointing thejudge and the orientation of the government in power.
-  We ran logistic regressions on all cases involving the government as a party (but only asappellant or respondent, not both), with the dependent variable being whether the governmentwon, and the independent variables being the government in power (liberal or conservative),the party appointing the judge (liberal or conservative), an interaction term between the government in power and the party appointing the judge, the direction (liberal or conservative)of the lower court decision, the area of law, and a time trend variable. The government andinteraction terms were not significant at the .05 level for the UK and Australia. For the UnitedStates, the government in power coefficient was significant at the .01 level but very small (witha 0.5 percent lower win rate for “liberal” governments) and not significant for the interactionterm. We did not run this regression for India as judges appoint their fellow judges.
-  These effects were significant at the .01 level.
-  Chad M King, “Strategic Selection of Legal Instruments on the U.S Supreme Court” (2007)35:5 American Politics Research 621 at 637-638.
-  Radmilovic, supra note 112 at 63.
-  Radmilovic, supra note 112 at 65-66, n. 49.
-  Dotan, “Judicial Rhetoric,” supra note 103, n. 43; Yoav Dotan, “Judicial Activism andGovernment Practises in Litigation at the Israeli High Court of Justice 1970-2000” in Yun-chienChang, ed, Empirical Legal Analysis: Assessing the Performance of Legal Institutions (Abingdon,UK: Routledge, 2014) 159 at 172.
-  Hofnung & Weinshall-Margel, “Judicial Setbacks,” supra note 103, n. 43; Hofnung &Weinshall-Margel, “Judicial Setbacks”, supra note 103 at 686-687 (Justice Procaccia noted ina decision overturning a state confiscation of land: “[d]uring the hearings on the petition, wesuggested different paths in the hope of obtaining an agreement which would balance betweenthe needs and the different interests of the sides, but, unfortunately, these offers were notaccepted ... and so there is no escape from judicial decision in the petition”).
-  Pablo T. Spiller & Emerson H. Tiller, “Invitations to Override: Congressional Reversalsof Supreme Court Decisions” (1996) 16:4 International Review of Law and Economics 503 at504-505.
-  Lori Hausegger & Lawrence Baum, “Inviting Congressional Action: A Study of SupremeCourt Motivations in Statutory Interpretation” (1999), 43:1 American Journal of Political 162 at165 [Hausegger & Baum, “Inviting Congressional Action”].
-  Hausegger & Baum, “Inviting Congressional Action,” supra note 124 at 169.