Constitutional courts as veto players: Lessons from the United States, France and Germany

Abstract

The number of constitutional courts and supreme courts with constitutional review rights has strongly increased with the third wave of democratisation across the world as an important element of the new constitutionalism. These courts play an important role in day‐to‐day politics as they can nullify acts of parliament and thus prevent or reverse a change in the status quo. In macro‐concepts of comparative politics, their role is unclear. Either they are integrated as counter‐majoritarian institutional features of a political system or they are entirely ignored: some authors do not discuss their potential impact at all, while others dismiss them because they believe their preferences as veto players are entirely absorbed by other actors in the political system. However, we know little about the conditions and variables that determine them as being counter‐majoritarian or veto players. This article employs the concept of Tsebelis’ veto player theory to analyse the question. It focuses on the spatial configuration of veto players in the legislative process and then adds the court as an additional player to find out if it is absorbed in the pareto‐efficient set of the existing players or not. A court which is absorbed by other veto players should not in theory veto new legislation. It is argued in this article that courts are conditional veto players. Their veto is dependent on three variables: the ideological composition of the court; the pattern of government control; and the legislative procedures. To empirically support the analysis, data from the United States, France and Germany from 1974 to 2009 is used. This case selection increases variance with regard to system types and court types. The main finding is that courts are not always absorbed as veto players: during the period of analysis, absorption varies between 11 and 71 per cent in the three systems. Furthermore, the pattern of absorption is specific in each country due to government control, court majority and legislative procedure. Therefore, it can be concluded that they are conditional veto players. The findings have at least two implications. First, constitutional courts and supreme courts with judicial review rights should be systematically included in veto player analysis of political systems and not left aside. Any concept ignoring such courts may lead to invalid results, and any concept that counts such courts merely as an institutional feature may lead to distorted results that over‐ or under‐estimate their impact. Second, the findings also have implications for the study of judicial politics. The main bulk of literature in this area is concerned with auto‐limitation, the so‐called ‘self‐restraint’ of the government to avoid defeat at the court. This auto‐limitation, however, should only occur if a court is not absorbed. However, vetoes observed when the court is absorbed might be explained by strategic behaviour among judges engaging in selective defection.

The Government Deference Dimension of Judicial Decision Making: Evidence from the Supreme Court of Norway

“…Although the range of possible preferences is broad, many influential studies have focused on judges' policy preferences on the same left–right scale that structures party politics in many countries. Judges may either straightforwardly enact those preferences (the attitudinal model: Segal & Spaeth 2002) or may be constrained (the strategic model: Bergara et al 2003; Brouard & Hönnige 2017). These preferences are either inferred from patterns of judicial (dis)agreement, or they are inferred from the position of the actor appointing each judge.…”

El poder constitucional en América Latina: hacia una tipología de las cortes constitucionales de la región

“…Esto debido a constreñimientos de origen, básicamente los mecanismos de selección. Análisis en el mismo sentido concluyen que los órganos constitucionales actúan como veto players condicionales; dicha actuación se encuentra supeditada a variables como la composición ideológica de la corte y los procedimientos legislativos (Brouard y Hönnige, 2017).…”

Subnational constitutional courts and judicialization in Germany

“…On the one hand, he found that many scholars ascribe constitutional courts an "important role" in democratic systems (Hönnige 2011: 346). In this perspective, democracies show a strong tendency towards judicialization if these political systems have courts that can nullify laws (Lijphart 1999;Tsebelis 2002;Brouard and Hönnige 2017;Stone 1994). Ran Hirschl (2004: 73) even identified a "global trend toward juristocracy" which is "part of a broader process, whereby political and economic elites, while they profess support for democracy, attempt to insulate policymaking from the vicissitudes of democratic politics".…”