Legislative “Allies” and Judicial Oversight of Executive Power

Abstract

ABSTRACTWhen ruling on executive power challenges, judges will exhibit increased deference if faced with the threat of retaliation or non-enforcement from the executive. However, in cases involving executive power, legislatures play a key role in determining whether judges rule against the executive. When equipped with a legislative “ally” the threat of executive retaliation decreases, thus reducing the necessity of strategic behavior on the part of judges, particularly judges whose preferences diverge from the executive. Using an original dataset of cases involving challenges to state executive power between 1980 and 2010, I find that preference congruence with the state legislature affects whether judges defer to executive power. However, the effect of a legislative ally depends on the ideological distance between the judge and the executive. Although many separation of power analyses focus on the conflict between legislatures and courts, legislatures can assist in facilitating judicial independence when courts monitor executive power.