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).
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).
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.