# Constitutional Courts in Comparative Perspective: A Theoretical Assessment (Georg Vanberg, 2015)

how can constitutional significant impact the political landscape with limited resources at their disposal, and no direct powers of enforcement?
* the benefits that independent courts can provide to other policy makers (“endogenous explanations”)
* the constraints that keep executives and legislators from undermining the judiciary (“exogenous explanations”).
-> role of strategic judicial behavior in maintaining and expanding judicial power.

## Puzzle and LR
policy makers in the executive and legislative branches
* have considerable capacity to ignore or actively resist judicial decisions they find unpalatable
* they also have the tools to undermine the institutional standing and authority of the judiciary more generally.

LR offer two explanations:
1. endogenous incentives for executive and legislative officeholders to respect judicial authority
2. exogenous costs faced by executive and legislative officeholders for attacking judicial independence and authority

## Establishment VS Maintenance of Judicial Independence and Authority
Establishment of an independent judiciary: instituting an independent, powerful court is viewed as desirable by a decisive coalition at a particular point in time
* The interests and coalitions that are influential at the constitution-writing stage (establishment) may not be the same as those that dominate the subsequent political process under the constitution (maintenance).
* constitutional conventions operate: ensure that in the environment of great uncertainty about the future distribution of power and the nature of the politcal issues that must be solved that the judical has a ground to confront the government.
* judical independence can help to enforce constitutional limits on political power that restrain temporary passions and protect poltical minorities. The independent judiciary can act as a guadian to protect society from dictatorship (can be in a form of a person or paliamentary majority)

## Endogenous Explanation for Judical Independence and Authority
Hypothesis 1: judiciary can help policy maker to achieve their purposes more efficiently than would be in possible in absence.
* direct benefits of judical review for current officeholders
* indirect benefits of judical review for current officeholders

Critical point: judiciary institutional integrity indicate a "package deal" for policy maker-- the courts represent a basket of policy outcomes ("all or nothing")

### Direct Benefits of Judical Review
1. information benefits: once policy's effect become more apprent after implementation, judical review can allow courts to strike down legislation that turns out to be undesirable ex post, and this "undo" could be extermely costly for the legislative coalition.
2. blaming shift: some policy choice may anger significant cosntituencies.
3. fragmented politcal system (a seperation of executive and legislative powers): benefit an independent judiciary that enforce the boundaries of authority between them
* in federal system, officeholders at each level of government are likely to support a judiciary that can protect them agaisnt encraochment by the other levels.
--> policy maker in these circumstances can derive from turning an active court that engage in "regime enforcement" or "overcoming gridlock" to promote the interests that policy makes cannot advance directly.

### Indiect Benefits of Judical Review
insurance theory: Ramseyer (1994) compare US and Japan and derive that governming parties are willing to tolerate an independent judiciary that constrains their policies unhampered if they expect that the judiciary will also protect the parties interest when it find itself in position
* different from above: do not benefit directly, but for current government, the indirect benefit of the promise of enjoying judicial protection when in opposition more than compensates for this loss.
* Stephenson's game-theoretic meodel (2003)

## Exogenous Explanations for Judicial Independence and Authority.
In contrast to endogenous explanations, exogenous explanations for judicial authority point to factors that constrain executives and legislators to respect judicial authority even if they would prefer to resist or attack the judiciary.

Public support is the key enforcement mechanism, however whar explains public support for courts as independent institutions?
* political process in democracies represents complex preferences aggregation and delegation problems rather than simple representation of "the people's will"
** redress principal-agent problems between citizens and office-holders: citizens may observe interaction's between their government and an independent court.
* "democracy and the rule of law": a critical advantage of written constitutions is they can facilitate coodinated understanding of constitutional boundaries.

Implications:
1. The first is that in this account, what makes constitutional review valuable to citizens is its coordinating power.
2. The second follows immediately: Primar- ily, the force of judicial decisions derives not from the judges’ legal or constitutional expertise but from their decisions’ coordination function.
3. In the face of multiple plausible interpretations of a constitutional provision, judges derive power from their coordinating function, largely independent of the content of their decision
--> “We are under a constitution, but the constitution is what the judges courts make it possible to enforce limits on power.say it is.”

## Strategic Judicial Behavior and Judical Authority

Both endogenous and exogenous explanations for judicial authority imply that respect for judicial independence is conditional
central assumption of strategic accounts: judges are forward looking (Knight & Epstein 1998). They choose actions realizing that their own choices shape political outcomes only in conjunction with the actions of others
* Judicial decisions that consistently frustrate the interests of policy makers in the executive and legislative branches, or that serve to convince large segments of the public that judicial review does not promote the interests of citizens, pose a threat to judicial authority.
* They can also undermine public support, which lowers the costs to policy makers of subverting judicial authority.