The Political Foundations of Judicial Independence in Dictatorship and Democracy

Abstract

This book argues that explaining judicial independence—considered the fundamental question of comparative law and politics—requires a perspective that spans the democracy/autocracy divide. Rather than seeking separate explanations in each regime context, in The Political Foundations of Judicial Independence in Dictatorship and Democracy, Brad Epperly argues that political competition is a salient factor in determining levels of de facto judicial independence across regime type, and indeed of greater import in autocracies. This is because a full “insurance” account of independence requires looking not only at the likelihood those in power might lose elections but also the variable risks associated with such an outcome, risks that are far higher for autocrats. First demonstrating that courts can and do provide insurance to former leaders, he then shows via exhaustive cross-national analyses that competition’s effects are far higher in autocratic regimes, providing the first evidence for the causal nature of the relationship. Epperly argues that these findings differ from existing case study research because in democratic regimes, a lack of political competition means incumbents target the de jure independence of courts. This argument is developed via in-depth case study of the Hungarian Constitutional Court after the country’s 2010 “constitutional revolution,” and then tested globally. Blending formal theory, observational and instrumental variables models, and elite interviews of leading Hungarian legal scholars and judges, Epperly offers a new framework for understanding judicial independence that integrates explanations of both de jure and de facto independence in both democratic and autocratic regimes.

Can Courts in Nondemocracies Deter Election Fraud? De Jure Judicial Independence, Political Competition, and Election Integrity

“…There are both theoretical and model-based reasons to be confident that the level of pre-reform competition is not a confounder for the results here. First, prior work does not show that competition is associated with greater de jure independence in nondemocracies (Epperly 2019; Staton, Reenock, and Holsinger 2022). Second, balancing on pre-reform level of competition and transitional elections helps control for the possibility of such an effect.…”

“…Two other potential confounders are considered in the appendix (Tables A.8 and A.9), due to high missingness; both sets of models support the main findings. First is the preelection legislative seat share of the governing party (Cruz, Keefer, and Scartascini 2017), as governing parties with a slimmer majority may increase the formal independence of the judiciary as an insurance policy should they enter the minority (Epperly 2019) or seek to intensify their control over the courts to forestall losing power (Aydin 2013; Popova 2010). Similarly, more dominant parties are likely able to deliver higher levels of manipulation (Rundlett and Svolik 2016; Simpser 2013), though competitiveness has also been associated severe manipulation (Lehoucq 2003).…”

“…All variables described below lag one year behind any preelection judicial reform. These are the age of the regime in years (Boix, Miller, and Rosato 2013) because younger democracies may be more prone to changes in judicial independence (Helmke and Rosenbluth 2009), the level of economic development (Helmke and Rosenbluth 2009), the openness of the media environment (Staton 2010) and of the political system (Ramseyer 1994), the degree of concentration of power in the executive, and the extent of horizontal competition between the executive and the legislature (Epperly 2019;Helmke 2012;Randazzo, Gibler, and Reid 2016). I also include measures of high-court independence and low-court independence from V-Dem, as well as the latent judicial independence measure developed by Linzer and Staton (2015).…”

“…Indeed, recent cross-national work shows no relationship between political competition and the improvements in de jure independence(Epperly 2019;Staton, Reenock, and Holsinger 2022).3 Administrative penalties generally include fines, the loss of public position, or the right to stand as a candidate for office(Orozco- Henríquez, Ayoub, and Ellis 2010, 40-50).…”

“… 2 Indeed, recent cross-national work shows no relationship between political competition and the improvements in de jure independence (Epperly 2019; Staton, Reenock, and Holsinger 2022). …”