Judicial Independence and Party Politics in the Kelsenian Constitutional Courts: The Case of Portugal

Abstract

In this article we test to what extent Kelsenian-type constitutional judges are independent from political parties by studying the Portuguese constitutional court. The results yield three main conclusions. First, constitutional judges in Portugal are quite sensitive to their political affiliations and their political party's presence in government when voting. Second, peer pressure is very relevant. Third, the 1997 reform enacted to increase judicial independence has had no robust statistically significant effect.

Constitutional Judicial Behavior: Exploring the Determinants of the Decisions of the French Constitutional Council

“…Similar studies have been conducted for European Constitutional Courts, i.e. in civil law countries, and have tended to support a similar conclusion: Justices are less likely to strike down laws passed by the party that appointed them (Amaral-Garcia et al (2009), Garoupa et al (2011), Hoennige (2009). More globally, these studies have contributed to validating the attitudinal theory, which claims that Justices are motivated not only by legal concerns, but also by political and ideological matters.…”

Courts and New Democracies: Recent Works

“…Naturally these are not pure categories, and much of the work discussed here seeks to utilize mixed methodologies depending on the particular problem at hand. 7 Understanding the interaction of courts with other organizations in the political space, as in the strategic perspective, has provided important insights into the latent capacity of courts to contribute to democratic politics. Yet it does little to explain instances in which courts do not exercise that capacity, as in Hilbink's account of Chile.…”

Quantitative Analysis of Judicial Voting

“…It has also been used in other contexts including German and French courts (Honnige 2009), Norway's Supreme Court (Skiple, Grendstad, Shaffer and Waltenburg 2016), the US, UK, Canada and Australia (Alarie and Green 2017) and Portugal (Amaral-Garcia et al 2009) Using the party of the appointer has some difficulties. Not all those who are in the same party have the same preferences -or even consistent preferences across areas of law -so we cannot assume all judges appointed by these parties have the same preferences (Epstein, Landes and Posner 2013;Epstein et al (forthcoming)).…”

“…If we are considering constitutional cases, one of the most straightforward specifications is whether the judge found the challenged action, decision or legislation to be unconstitutional. Amaral-Garcia et al (2009), for example, examined whether judges on the Portuguese constitutional court voted for or against the constitutionality of legislation to determine if a judge's vote was influenced by the political party that held a majority in parliament at the time it appointed her. Even then, of course, choices had to be made.…”