Judicial Decision Making Under Changing Constraints: A Comparison between the United States and Europe

Abstract

Attitudes, political strategies and legal constraints affect the decisions that judges make. For long the literature on judicial politics has assessed which of these three factors best explain judicial decision-making. This paper takes a different perspective. Rather than focusing on what explains judicial decisions, it focuses on when these factors matter most. The paper revolves around two main questions. First, under what conditions are courts more susceptible to the attitudes of their judges, their strategic environment or legal concerns? Second, are attitudes, strategies or legal precedent more prominent in different systems of judicial review? To the extent that judicial review is exercised by different types of courts under particular conditions in different countries, some of these factors may be more relevant in some systems than in others.Regarding my first question, I argue that judicial precedent matters to the extent that the reputation of the court as a judicial institution is at stake. Courts are institutions with specific procedures and raison d’etre, which require judges to use precedent and justify departures from it in order to protect their reputation. From this perspective, the court’s prior rulings are a source of its legitimacy. Judges are able to introduce their attitudes and preferences in their decisions when precedent is non-existing, ambiguous, or when different case law can be applied to support opposite rulings. The permeability of justices’ values in their decisions is contingent upon the availability of strong a strong body of jurisprudence. When the court’s status and legitimacy depend on its support to other political branches, majorities or public opinion, rather than on the consistency of its rulings, strategic considerations may apply.Regarding which type of judicial review system is more likely affected by one or another factor, I argue that newer and less accessible courts are more open to attitudinal filtrations. Where courts are older or more accessible, their decisions become more constrained by legal considerations. This is so because access to the court and the volume of litigation in a political system affect how solid and intricate the court’s jurisprudence will be, which in turn affects the relevance of legal constraints in its decisions. In addition, if politicians have more direct control over judicial appointments and the court’s jurisprudence, and where cases are more visible strategic considerations will prevail.I find that European systems of judicial review tend to be legally constrained, while attitudinal factors are more salient in the American model. Both systems are equally prone to develop strategic judicial decisions. I test my findings by analyzing the patterns of judicial decision making on federalism litigation in the US Supreme Court from 1953 to 2007 and in the Spanish Constitutional Court from 1980 to 2008.