Public Awareness and the Behavior of Unpopular Courts

Scholars have long debated the positive and negative consequences of an aware public for the quality of governance in modern liberal democracies. This article extends this debate to the context of constitutional review by exploring how public awareness can limit the effective exercise of review by courts lacking strong public support. Incorporating aspects of both the legitimacy and separation of powers theories on judicial power, the author argues that public awareness weakens the efficacy of such unpopular courts by creating an electoral incentive for governments to defy adverse rulings, even when doing so may lead to punishment from other institutional stakeholders. The article develops a simple formal model that identifies how and under what conditions public awareness can influence an unpopular court's decision making. An analysis of rulings issued by the Court of Justice of the European Union finds support for the model's empirical implications.