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“When the Devil Turns … ”: The Political Foundations of Independent Judicial Review

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  • Matthew C. Stephenson

Abstract

An independent judiciary with the power to constrain the executive and legislative branches is commonly thought to be the foundation of government under the rule of law. However, it is not obvious why those with political power would ever tolerate the constraints imposed by an independent court. I offer an explanation for independent judicial review that is based on ongoing political competition between risk-averse parties. An independent judiciary is a mechanism through which these political competitors can enforce mutual restraint. But support for independent judicial review is sustainable only when (1) the political system is sufficiently competitive, (2) judicial doctrine is sufficiently moderate, and (3) parties are both sufficiently risk averse and forward looking. I employ a simple formal model to show how these variables influence the political sustainability of independent judicial review, and I also present the results of a preliminary empirical test that confirms the central hypotheses.

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  • Matthew C. Stephenson, 2003. "“When the Devil Turns … ”: The Political Foundations of Independent Judicial Review," The Journal of Legal Studies, University of Chicago Press, vol. 32(1), pages 59-89, January.
    • Handle: RePEc:ucp:jlstud:v:32:y:2003:p:59-89
    DOI: 10.1086/342038
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    Cited by:

    1. Voigt, Stefan & Ebeling, Michael & Blume, Lorenz, 2007. "Improving credibility by delegating judicial competence--the case of the Judicial Committee of the Privy Council," Journal of Development Economics, Elsevier, vol. 82(2), pages 348-373, March.
    2. Hayo, Bernd & Voigt, Stefan, 2016. "Explaining constitutional change: The case of judicial independence," International Review of Law and Economics, Elsevier, vol. 48(C), pages 1-13.
    3. Benjamin Broman & Georg Vanberg, 2022. "Feuding, arbitration, and the emergence of an independent judiciary," Constitutional Political Economy, Springer, vol. 33(2), pages 162-199, June.
    4. Cohen, Alon, 2014. "Independent judicial review: A blessing in disguise," International Review of Law and Economics, Elsevier, vol. 37(C), pages 209-220.
    5. Mordechai E. Schwarz, 2023. "A master of two servants: lessons from the israeli experience about the effect of separation of powers on public accountability and social welfare," Constitutional Political Economy, Springer, vol. 34(1), pages 59-87, March.
    6. Yukihiro Yazaki, 2014. "Rights and judicial independence," Economics of Governance, Springer, vol. 15(2), pages 179-201, May.
    7. Jeffrey K. Staton & Georg Vanberg, 2008. "The Value of Vagueness: Delegation, Defiance, and Judicial Opinions," American Journal of Political Science, John Wiley & Sons, vol. 52(3), pages 504-519, July.
    8. Yehonatan Givati & Matthew C. Stephenson, 2011. "Judicial Deference to Inconsistent Agency Statutory Interpretations," The Journal of Legal Studies, University of Chicago Press, vol. 40(1), pages 85-113.
    9. John R. Wright, 2010. "Ambiguous Statutes and Judicial Deference To Federal Agencies," Journal of Theoretical Politics, , vol. 22(2), pages 217-245, April.

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