Is There a Politically Optimal Level of Judicial Independence?

Abstract

Although society as a whole may benefit from an independent judiciary, it is not clear that individual politicians do: an independent court is one that can tell a politician not to do what he or she would like. This paper develops a simple model in which incumbent politicians choose the level of judicial independence, setting the gains from the increased durability of their preferred policy against the costs of policymaking by the judge. The model is tested by examining cross-sectional and time series differences in the judicial institutions of the American states. The results are consistent with the model's predictions: firmer single party control is found to be associated with a less independent judiciary, closer competition between political parties with a more independent judiciary, greater differences in party policy positions with a more independent judiciary, and greater differences between the policy preferences of judge and politician with attempts to reduce the independence of the judiciary.