The Two Faces of Judicial Power : Dynamics of Judicial-Political Bargaining

This book shows that constitutional courts exercise direct and indirect power on political branches through decision-making. The first face of judicial power is characterized by courts directing political actors to implement judicial decisions in specific ways. The second face leads political actors to anticipate judicial review and draft policies accordingly. The judicial-political interaction originating from both faces is herein formally modeled. A cross-European comparison of pre-conditions of judicial power shows that the German Federal Constitutional Court is a well-suited representative case for a quantitative assessment of judicial power. Multinomial logistic regressions show that the court uses directives when evasion of decisions is costly while accounting for the government's ability to implement decisions. Causal analyses of the second face of judicial power show that bills exposed to legal signals are drafted accounting for the court. These findings re-shape our understanding of judicialization and shed light on a silent form of judicialization. Benjamin G. Engst is a Postdoctoral Researcher in Political Science at the University of Mannheim, Germany Acknowledgments Contents List of Figures List of Tables 1 The Two Faces of Judicial Power 1.1 (Non-)Decisions as a Means of Judicial Power 1.1.1 Judicial Choices and Their Implications 1.1.2 The First Face of Judicial Power 1.1.3 The Second Face of Judicial Power 1.2 Approach of This Book 1.3 Chapter Outline Notes References 2 The Judicial-Policy-Dialogue Game 2.1 The Sequences of the Judicial-Policy-Dialogue Game 2.1.1 The Government as an Actor 2.1.2 The Court as an Actor 2.1.3 Additional Modeling Choices 2.2 Strategies in Equilibrium 2.2.1 The Government's Final Choice 2.2.2 The Court's Choice 2.2.3 The Government's Initial Choice 2.3 Implications and Hypotheses 2.3.1 Simulating the Judicial-Policy-Dialogue Game 2.3.2 Hypotheses from the Judicial-Policy-Dialogue Game 2.4 Uncertainty in the Government's Initial Choice 2.5 Autolimitation and Legal Signals 2.5.1 Judicial Power Through Past Decisions 2.5.2 Autolimitation and Intra-parliamentary Deals 2.6 Summary Notes References 3 Judicial Power in Germany and the European Union 3.1 The German Federal Constitutional Court 3.1.1 The Institutional Design of the GFCC 3.1.2 The Key Legal Procedures of the GFCC 3.1.3 The Political Branches and the GFCC 3.2 The Power of the GFCC in a European Comparison 3.3 The Power of the GFCC and the Parental Custody Reform 3.4 Summary Notes References 4 The First Face of Judicial Power 4.1 The Context of the Empirical Assessment 4.2 Operationalizing the First Face of Judicial Power 4.2.1 Dependent Variable: Judicial Choices 4.2.2 Independent Variables: The Government's and the Court's Costs 4.2.2.1 External Aspects Driving the Government's Costs 4.2.2.2 Internal Aspects Driving the Government's Costs 4.2.2.3 The Court's Costs from an Evasion 4.2.3 Control Variables: Alternative Explanations for Judicial Choices 4.3 Modeling Judicial Choices to Assess the First Face of Judicial Power 4.4 Empirical Assessment of the First Face of Judicial Power 4.4.1 Costs as an Explanation for Judicial Choices 4.4.2 The Government's Costs and Judicial Choices 4.4.3 The Court's Costs and Judicial Choices 4.5 Understanding Nuances of the First Face of Judicial Power 4.6 Showing the First Face of Judicial Power 4.7 Summary Notes References 5 The Second Face of Judicial Power 5.1 The Second Face of Judicial Power in a Causal Inference Framework 5.2 Operationalizing the Second Face of Judicial Power 5.2.1 Dependent Variable: Policy Shift 5.2.2 Independent Variable: Legal Signal 5.2.3 Control Variables: Alternative Explanations for a Policy Shift 5.3 Modeling Choices to Assess Policy Shifts 5.4 Empirical Assessment of the Second Face of Judicial Power 5.4.1 Findings from the Analyses of the Second Face of Judicial Power 5.4.2 Robustness of the Findings on the Second Face of Judicial Power 5.5 Summary Notes References 6 Conclusion: Implications of Judicial Power 6.1 Linking the Two Faces of Judicial Power 6.2 Contributions of This Study 6.3 Implications for the Judicialization Hypothesis 6.4 Avenues for Further Research Note References Appendix A: Judicial Choices in Comparison Appendix B: The Judicial-Policy-Dialogue Game Appendix C: Judicial Power in Germany and the EU C.1 Hierarchical Cluster Analysis C.2 Robustness of the Indices on the Two Faces of Judicial Power Appendix D: The First Face of Judicial Power D.1 Validation of the Government's Topic of Highest Interest D.2 Assessment of the Variables D.3 Empirical Assessment of the First Face of Judicial Power D.4 Concluding Analysis Varying Costs Simultaneously D.5 Logistic Regression to Assess the First Face of Judicial Power D.6 Opinion Clarity by Costs Appendix E: The Second Face of Judicial Power E.1 Assessment of the Variables E.2 Logistic Regression to Assess the Second Face of Judicial Power E.3 Robustness Excluding the 16th Legislative Period E.4 Robustness with Stemmed Words Excluding Stop Words E.5 Robustness Using a Stricter Legal Signal Index "This book shows that constitutional courts exercise direct and indirect power on political branches through decision-making. The first face of judicial power is characterized by courts directing political actors to implement judicial decisions in specific ways. The second face leads political actors to anticipate judicial review and draft policies accordingly. The judicial political interaction originating from both faces is herein formally modeled. A cross-European comparison of pre-conditions of judicial power shows that the German Federal Constitutional Court is a well-suited representative case for a quantitative assessment of judicial power. Multinomial logistic regressions show that the court uses directives when evasion of decisions is costly while accounting for the governments ability to implement decisions. Causal analyses of the second face of judicial power show that bills exposed to legal signals are drafted accounting for the court. These findings re-shape our understanding of judicialization and shed light on a silent form of judicialization"-- Provided by publisher