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.

The political determinants of judicial dissent: evidence from the Chilean Constitutional Tribunal

“…For example, the overtly political background of elected judges in the United States has been found to encourage dissenting opinions because of the incentives to maintain allegiance to partisan positions (Brace and Hall, 1993). A similar phenomenon is noted with regard to higher rates of dissent for Spanish Constitutional Court judges with strong party ties (Garoupa et al , 2011) and judges with party allegiances on Portugal’s Constitutional Court (Amaral-Garcia et al , 2009). An extension of this literature, as yet only applied in the American state context, suggests that elected state judges dissent more than appointed judges and that they even disagree substantially with other judges from their own party (Choi et al , 2010).…”

Ideological Voting on Chile's Constitutional Tribunal: Dissent Coalitions in the Adjudication of Rights

“…In his study, Voeten finds very little evidence that "judges systematically employ cultural or geopolitical biases in their rulings" (2008: 417); although he does find that a judge's country of origin and career incentives have some impact. Amaral-Garcia et al (2009) find that on the Portuguese high court, a portion of Portuguese judges selected by the legislature prefer voting for the party of the legislators that appointed them. In another example, Westein et al (2009) have determined that the Canadian Supreme Court exhibits unidimensional voting patterns, but that such patterns are not consistent across issue areas as in the United States Supreme Court.…”

Mixed Judicial Selection and Constitutional Review

“…Although judges’ selecting branch is an important influence on their individual decisions, case context cannot be overlooked (see Amaral-Garcia, Garoupa, & Grembi, 2009; Scherer, 2004). Judges should be influenced by the subject matter or area of the constitution implicated, as well as how the case arrived at the reviewing court.…”