Abstract
In applying constitutional review, post-communist constitutional courts are affected by the existing political and institutional environments, as well as by their own institutional capabilities. However, our understanding of the activity of the post-communist constitutional courts remains incomplete because the existing research fails to consider how the institutional changes on these courts affect their decision-making behavior. In this study, I examine the activity of nineteen post-communist constitutional courts during the 1992-2006 period. I use an aggregate, time-series measure of judicial institutionalization to show that higher levels of institutionalization enhance these constitutional courts’ ability to pursue their policy goals and influence the degree to which they invalidate policy choices of other major political actors, while lower levels of institutionalization limit the courts’ impact on legal and political issues. The findings of this analysis thus provide the first empirical confirmation of the importance of judicial institutionalization to the policy outputs of the post-communist constitutional courts. I also illustrate how various institutional and contextual influences, such as executive power, legislative fragmentation, economic conditions, EU accession process, the identity of the litigants, and the nature of the litigated issues, influence the activity of post-communist constitutional courts.
Highlights
Constitutional courts can perform important functions in the consolidation and maintenance of democratic regimes
The data show that the mean rate of judicial activism across the sample and over the observed period (1992-2006) is relatively high – 54.4% of the published cases decided by the post-communist Constitutional Court (CC) resulted in invalidation of a challenged policy
In order to account for the fact that some constitutional courts publish more decisions than others, I adopt a system of proportional weighing suggested by Herron and Randazzo (2003)
Summary
Constitutional courts (hereafter CCs) can perform important functions in the consolidation and maintenance of democratic regimes. If CCs care about making efficacious policy – one that is complied with and faithfully enforced by other institutions – they will still remain attentive to other strategic constraints on their own behavior as well as on the behavior of the litigants to the case This means that a host of other institutional and contextual factors – such as the degree of legislative fragmentation, the relative power of the executive, the degree of public support for the court and its decisions, presence and severity of international pressure, and the degree of political transparency – become important to the analyses of judicial decision making. In order to assess whether activism rates by the post-communist CCs can be treated as an indicator of their independence and/or power, we need to systematically consider the factors important to CC institutionalization and examine these characteristics alongside a variety of other contextual and institutional influences on the exercise of judicial review
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