Threats to Judicial Independence

Abstract

Abstract There are many ways in which governments or legislatures may attempt to curb the power or independence of the judiciary. Such efforts, often called ‘court curbing’, have important implications for the study of judicial behaviour; the research in this field suggests not only that judicial decisions can provoke court curbing but also that the threat of court curbing will motivate judges to constrain their own decisions strategically. Court curbing is also a matter of great practical concern; threats to independent judicial power may prefigure attacks on other values or institutions that people care about and, in extreme cases, herald a turn to authoritarian government. This chapter considers theory and evidence concerning several factors that might encourage court curbing (i.e. ideological polarization, political ‘self-defence’, ‘position taking’, and populism) as well as other factors that might discourage court curbing (i.e. constitutional impediments, veto players and political fragmentation, political competition, and public support for the judiciary). The chapter concludes by highlighting some promising pathways for future research in this area.