A majoritarian basis for judicial countermajoritarianism

Abstract

Judicial protection of disfavored minorities against oppressive legislation in majoritarian separation-of-power systems raises a puzzle: Why don’t legislative majorities enacting discriminatory legislation curb judicial power when judges use their power to protect minorities and stymie the legislation? We answer this question by showing that judicial protection of disfavored minorities can emerge as an unintended by-product of majoritarian politics. We develop a model that includes the two aspects of judicial review Alexander Hamilton discusses in The Federalist No. 78: Judicial protection of disfavored minorities against hostile popular majorities, and judicial protection of majority interests against legislative depredation. It is the institutional linkage between these functions that induces popular majorities, within limits, to side with judges against legislatures even when those judges protect minorities that popular majorities want to oppress.

Keywords

Countermajoritarianism judicial review legislatures minority protection separation-of-powers

1 Introduction

Why do judges in majoritarian separation-of-power systems, such as those in US state and national governments, ever accord protection to minorities against hostile majorities? The traditional answer, that the USA has an independent judiciary that allows judges to do what they want without fear of political retribution, is insufficient. After all, US legislatures have a number of means by which to respond to uncooperative judges, even beyond impeachment.¹ While a romantic view of the US judiciary sees judges as heroic protectors of unpopular minorities against majority-supported legislative oppression, in fact, judicial countermajoritarianism presents a deep puzzle in majoritarian separation-of-powers systems (Friedman, 2002; Hall and Ura, 2015).

In providing a solution to this puzzle, this article contributes to the literature in three ways. First, we identify a mechanism by which popular majorities will support minority-protecting judges despite majority preferences hostile to minority rights. In doing so, our analysis contributes to the separation-of-power literature in which voters protect judges against legislative discipline. In the existing literature in which voters protect judges by threatening to vote against legislators who would discipline judges (see e.g. Vanberg, 2001), popular support for courts is typically exogenous to the model. Our model accounts for why popular majorities would choose to protect countermajoritarian judges despite the judges’ protection of minorities.

Second, our account contributes to the very large literature in law and political science devoted to the ‘countermajoritarian problem.’ The scholarship on this topic is so extended that Barry Friedman terms it an academic ‘obsession’ (Friedman, 2002). Existing formal literature of judicial autonomy in separation-of-power systems with voters, courts, and legislatures, while significant in its own right (see, e.g. Stephenson, 2004), does not directly speak to the countermajoritarian problem itself. More broadly, this article contributes to the substantive literature on countermajoritarianism by providing a novel account of the interplay between popular majorities, majoritarian legislators, and minority-protecting judges.

The third contribution of our analysis is less normatively sanguine than the first two. Our analysis shows the ability of judges to protect unpopular minorities in the face of majoritarian hostility is a narrow-run thing. While we account for the puzzle of why judges would ever protect disfavored minorities in majoritarian separation-of-power systems, we also show that plausible tipping points exist under which judges would refuse to intervene to protect unpopular minorities against majority oppression. In doing so we provide a fully specified formal account of what Rosenberg calls the US judiciary’s ‘hollow hope’ (1991, cf. Graber, 1993) in which judicial protection of unpopular minorities is much more contingent than the romantic picture of judicial countermajoritarianism portrays it to be. The model identifies how the interaction of courts, legislatures, and voters both creates space for judicial protection of minority rights in the face of majoritarian preferences for minority oppression and also identifies practical boundaries on the protection judges can provide to minorities.

The broad arc of our story is this: We identify intuitive conditions under which popular majorities conditionally support judicial review that monitors and disciplines legislative majorities. In this role, judges decrease the probability that legislators use their authority to serve themselves at the expense of the interests of the popular majority. Because of this service to majoritarian interests, popular majorities willingly accept some minority-protecting judicial countermajoritarianism as the cost of judicial monitoring. In turn, popular support for courts constrains legislative majorities to accept judicial review even when judges prevent implementation of majority-enacted legislative policies.

We first develop a very simple game-theoretic account to consider the civics-class view of judges as protectors of minority interests in democratic polities. This provides us a baseline that demonstrates the obvious: Popular majorities will not support purely countermajoritarian courts against legislative majorities if that is the only function that courts serve. The institutional environment of judicial countermajoritarianism has to be more complicated than that to account for judges being willing to use their power to protect disfavored minorities.

To account for this broader institutional environment, we add a second stage to the simple one-stage game. In this stage a legislative majority may (possibly) constitute itself a faction against the public and use its power to transfer resources to it or to its supporters. Judges may (sometimes) prevent this transfer. We identify parameters under which popular majorities support the judicial veto against a legislature’s attempt to subjugate the court to its preferences. Rolling the expected benefits of judicial review for the popular majority in stage two back to stage one, the game identifies conditions under which both popular and legislative majorities will tolerate countermajoritarian judicial protection of minority interests. This occurs despite popular and legislative support for policies that oppress the minority. These findings also provide a theoretical framework that accounts for competing empirical claims about dynamics of public support for judicial institutions (Bartels and Johnston, 2013; Christenson and Glick, 2015, Gibson and Caldeira, 2009a, b; Gibson et al., 2003a, b; Gibson and Nelson, 2014, 2015).

2 Judicial countermajoritarianism

Reliance on courts to resolve the tension between American constitutionalism’s co-commitments to the people’s sovereignty and to individual rights is a problem as old as the republic itself. In The Federalist #78, Alexander Hamilton famously observed that limitations on federal power ‘can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.’ Controversy over judges’ roles in enforcing limitations on the power of the elected branches of the federal government is just as old. The Anti-Federalist writer ‘Brutus’ argued that the judicial review by unelected judges is at odds with the people’s right to control the Constitution’s meaning by ‘remov[ing]… rulers [who] break the compact.’ Modern constitutional scholars have remained preoccupied, perhaps even ‘obsessed’ (as Barry Friedman put it) (Friedman, 2002; cf. Hall, 2011, Keck, 2007; Sandalow, 1977), with the tension between judicial review and representative democracy (see also Bickel, 1986 and Ely, 1980).

Beyond normative debates of the interplay between majoritarian democracy and judicial protection of individual rights, judicial countermajoritarianism presents a puzzle in the positive analysis of American separation-of-powers systems. While the USA and state constitutions set out courts as a distinct branch of government, it nests judicial power in a larger system of checks and balances. The US Constitution, for example, grants Congress authority to control the resources, organization, and jurisdiction of the federal courts. (Analogous legislative powers exist at the state level as well.) Yet Congress rarely avails itself of these institutional prerogatives. Over the course of American history, federal courts have become increasingly prominent, powerful, and institutionalized decision-makers in American national government (see e.g. Burns, 2009; Friedman, 2009; Kramer, 2004; McGuire, 2004). This raises the question, why doesn’t Congress (and state legislatures) use its constitutional prerogatives to weaken the constraints imposed by judicial review? More generally, why don’t legislative majorities curb courts that prevent implementation of popularly-supported laws when legislatures have the tools to do so?

3 Incentives for legislative maintenance of judicial review

Incentives for legislatures to create and preserve judicial review by independent courts can be divided between ‘external’ and ‘internal’ incentives (Rogers, 2006). Externalist theories focus political dynamics outside legislatures that induce support for an independent judiciary. These theories typically point to public support for courts as a key mechanism deterring legislatures and other officials from disciplining judges for countermajoritarian decisions. When popular support for courts is sufficiently high, election-minded legislators, who would otherwise prefer to make policy without the constraint of judicial review, are induced ‘to respect judicial decisions as well as the institutional integrity of a court … [by t]he fear of … a public backlash’ against court-curbing activity (Vanberg, 2001: 347, see also Clark, 2009; Helmke, 2010; Ura and Wohlfarth, 2010). Theoretical and empirical research on the role of public opinion in shaping the politics of judicial independence typically treats public support for courts as an exogenous, unexplained phenomenon.

This, however, only pushes the problem back one step. Why would we expect popular majorities naturally to side with unelected judges against majoritarian legislatures? Even in systems with elected judges, why would we expect judges systematically to receive greater popular support than legislators? Identifying the judiciary’s countermajoritarian activities sharpens the question: Why would popular majorities support an institution that prevents attainment of policy objectives they support? Stephenson (2004) provides an answer to this question with a model that includes a legislature, a court, and a (representative) voter. The logic of Stephenson’s model is similar in spirit to what we develop below, but the focus is more general and does not highlight the central problem of the countermajoritarian difficulty, that is, the protection of disfavored minorities against majoritarian depredation.

Internalist theories identify ways in which independent judiciaries serve legislative interests. There are three categories of internalist models. The first category of internalist arguments focuses on policymaking benefits that accrue to a sitting legislative majority from a contemporary independent judiciary. Whittington (2005), for example, proposes that judicial review by courts allied with a national political majority can force recalcitrant states to abandon policies that are incongruent with the majority’s preferences and eliminate older policies that stymie the formation of coalitions for new legislation. Rogers (2001) also argues that courts have an informational advantage over legislatures, since they decide cases about enacted laws rather than create laws that have not yet encountered the real world. In this account, legislatures conditionally tolerate less preferred judicial decisions as the cost of preserving courts that can veto laws with unintended consequences.

A second category of internalist accounts of judicial independence focus on the intertemporal interactions of legislative majorities with other political actors or future legislative majorities. Broadly, these theories connect legislative majorities’ support for judicial review to a desire to protect preferred policy outcomes from interference by bureaucrats or future legislative majorities. Landes and Posner (1975) argue that judicial review enforcing the original intent of legislative majorities on agencies subsequently charged with enforcing laws makes policy bargains more durable. Ramseyer (1994) and Stephenson (2003) propose that, under some conditions, legislative majorities will endure the present costs of judicial review—limiting their ability to enact preferred policies—in order to ensure that a different, future legislative majority will be prevented from enacting highly disfavored policies by the (preserved) independent courts.

Finally, a number of scholars identify electoral benefits for legislators from the maintenance of judicial review. Graber (1993) and Salzberger (1993) also contend that lawmaking majorities benefit by shifting blame for unpopular policy outcomes onto courts (see also Hirschl, 2000, and Whittington, 2005). Dahl (1957) and Ura (2014) argue that judicial review legitimizes majoritarian policy choices.

Although all internalist theories of legislative maintenance point to benefits accruing to legislators from judicial review, the theories are sometimes not complementary and highlight limitations in one another. Consider, the tension between Whittington’s (2005) account of judicial review by allied courts with studies linking judicial authority to a legislative exchange for less policy influence now for greater policy influence later (Ramseyer, 1994; Stephenson, 2003). Whittington points to courts’ willingness to overturn old policies to benefit the formation of new lawmaking coalitions as a principal benefit to legislatures from judicial review. Models of intertemporal tradeoffs, in contrast, suggest that prior majorities allowed judicial independence to persist precisely to constrain new majorities’ ability to pursue more aggressive policy agendas. If, as Whittington suggests, judicial review benefits a future majority that will undo a sitting majority’s legislative accomplishments, it is unclear why the sitting majority would not curb judicial authority to prevent its future disfavored application. Likewise, Landes and Posner (1975) speculate that legislators derive value from courts’ role in implementing laws as they intended, but Rogers (2001) argues that legislators effectively delegate responsibility for redirecting policy implementation in the future.

More generally, and like externalist theories, many internalist theories of legislative maintenance of judicial review suffer from under-specified accounts of electoral behavior and legislators’ interest in cultivating electoral support. For Landes and Posner (1975), for example, judicial review makes policy agreements more enduring so legislators can extract higher prices from constituents via interest groups. This may serve legislators’ short-term interests, but it fails to explain why electoral majorities tolerate the maintenance of judicial institutions that obstruct their ability to influence implementation of policy in the present and allow their elected representative to capture a greater share of their expected policy rewards from them through interest group transfers. Likewise, Ramsayer’s (1994) and Stephenson’s (2003) models make no explicit mention of voters, presuming strong alignment between legislators’ and constituents’ preferences and discounts factors for policy gains. This may often be true (Mayhew, 1974), but even short-term pressures to satisfy constituencies with greater present policy gains at the expense of contemporary (but sticky) erosion of judicial authority would undermine courts’ institutional capacity (Canes-Wrone et al., 2001). Stephenson (2004) does include voters in his model, but provides no account of the critical question here, the ability of judges to protect minority populations in majoritarian political systems.

Conversely, blame avoidance mechanisms proposed by Graber (1993) and Salzberger (1993) assume sustained voter ignorance and elite cooperation. In particular, they presume that voters will remain unaware of the policy implications of judicial appointments and judicial institutions, and that election-minded legislators can maintain a conspiracy of silence by not drawing attention to courts’ countermajoritarian actions or currying electoral favor by acting to undermine judicial independence. These assumptions may have been more plausible in the not-too-distant past, but the sustained politicization of judicial nominations and confirmations among other kinds of increasing electoral-political engagement with judicial process indicate that there is a sizeable constituency attentive to judicial interference with policy implementation and that legislators have failed to preserve the public good, such as it is, of political deference to courts.

Finally, internalist accounts of legislative support for judicial review are inconsistent with empirical evidence showing an association between public support for courts and court curbing activity in Congress. Americans’ confidence in the Supreme Court is negatively associated with court curbing activity in Congress (Nelson and Uribe, 2017; Ura and Wohlfarth, 2010; see also Clark, 2009). If legislative support for judicial review were motivated by legislators’ private interests separate from electoral imperatives, there should be no relationship between dynamics in the public standing of courts and legislative actions undermining judicial decisions or the institutional integrity of courts. That is not the case, however.

4 Toward an integrated model of legislative and electoral support for judicial review

Externalist accounts of legislative support for judicial review either do not provide the theoretical microfoundation for public support for countermajoritarian courts. Internalist accounts of support for judicial review are inattentive to the role that voters might play in motivating legislative action undermining or preserving judicial review or propose models of electoral behavior that are inconsistent with observed developments in the electoral and legislative politics of judicial appointments and responses to judicial decisions. Advancing the positive theory of judicial review requires a model of the strategic interactions among legislatures, courts, and voters.

5 A baseline model with a purely countermajoritarian judicial veto

We develop a model of conditional popular support for courts’ independence that structures legislative maintenance of judicial review. The model illustrates circumstances under which popular majorities will support (some) judicial countermajoritarianism as the cost for courts monitoring legislative decisions in which legislators probabilistically use their authority to vote themselves resources that come at the expense of the majority.

The first stage of the game is one of simple or naive judicial countermajoritarianism (see Figure 1). The results are obvious and intuitive. We present it separately both because we would need to describe it anyway as the first stage of the two-stage game but also to draw attention to the critical feature of the game: The majoritarian outcome of the naïve game flips to its countermajoritarian opposite with the addition of the second stage of the game. The sequence of the game is as follows. First, nature selects a type of the court. The court has two types: with probability q the court’s policy preferences converge (c) with those of the legislature in burdening a minority group; with probability 1 –q, the court is a countermajoritarian court whose preferences diverge (d) from the legislature’s. (Table 1 provides a legend for symbols and payoffs.) This type of court wants to protect the minority group by striking down legislative policy burdens. The legislature knows the court’s type, while the public knows only the probability distribution over the court’s type.

Table 1.

Legend of symbols and payoffs.

Symbols
{C, D}	Type of court in first stage (w/ pr(convergent court) = q)
{L, M}	Type of court in second stage (w/ pr(aligns with voter median) = s)
{ $G, \bar{G}$ }	Type of legislature in second stage (w/ pr(grafty legislature) = r)
$E, \bar{E}$	Legislature chooses whether to enact policy
$V, \bar{V}$	Court vetoes or sustains an enactment
$D, \bar{D}$	Legislature chooses whether to discipline court
I, I	Voters choose to acquire info over legislature type
$Δ, \bar{Δ}$	Voters choose whether to discipline legislature
------	Information set
β_i	Voter beliefs (in period 2)
Payoffs
P, P’	Policy payoff in stage 1 (stage 2)
C	Cost to legislature of not being re-elected
Δ	Cost to court of being disciplined
P < Δ	Judges prefer to hold office over any specific policy outcomes
ϵ	Decision/transaction/opportunity cost to legislature for enacting a law
▪	Court and legislature know each other’s types.
▪	Voters don’t initially know court or legislature’s type, but know the probability distribution across their type.
▪	Voters can acquire information about legislature’s type in second stage of the game.

Figure 1.

Stage-one game between legislature, court, and voter.

Next, the legislature chooses whether to enact a policy $(E)$ that burdens the minority or not to enact that policy $(\bar{E})$ . The policy could be one in which the legislature taxes all individuals equally, but limits the availability of a government-provided good only to members of the majority (e.g. public schools paid for by all taxpayers but limited to white students), or the legislature could impose a tax only upon a minority but use the proceeds to pay for public goods available to all.² If the legislature enacts a policy, then the court may veto $(V)$ or sustain $(\bar{V})$ the policy. If the court vetoes the legislature’s enactment, then the legislature may discipline the court $(D)$ or leave it alone $(\bar{D}) .$ Whatever action the legislature takes regarding the judiciary, the (representative) voter may reelect the legislative majority or elect their rivals (who would then repeal the action of the previous legislative majority).

Payoffs are as follows. The legislature enacts a policy with policy payoff P. The legislature incurs a transaction and opportunity cost, ϵ < 0, if it enacts legislation and if it disciplines the judiciary. If it does both, then it incurs a cost of -2ϵ. If the voter throws the legislative majority out of office, the current legislatures realize a payoff of -C < 0, a cost to losing office and power. We assume that P– 2ϵ > 0 and C > ϵ.³

As mentioned above, there are two types of court, reflecting two possible alignments of judicial preferences relative to legislative preferences. The convergent-type court (C) shares the legislature’s policy preferences. So it receives a policy payoff of P when the legislature enacts legislation. If it is disciplined by the legislature it receives a payoff of -δ < 0. It prefers to continue in office rather than to strike down any specific piece of legislation, so P < δ.⁴ The divergent-type court (D) has countermajoritarian preferences. That is, it opposes legislation that would burden minority groups. If the burdening legislation is implemented, the divergent court realizes a payoff of -P. If disciplined, it receives the same payoff as the convergent court. If the court strikes down a statute and is not disciplined, then its policy payoff is zero (0).

Without confusion, the representative (majority) voter receives a policy payoff of P if the legislature burdens the minority. If no statute is enacted, or if the court strikes down the law and its decision is not overturned, then the voter receive a payoff of zero (0). If the law is struck down by the court and the legislature disciplines the court, then the same law is reenacted and sustained by the now-disciplined court. The voter then receives the payoff of the enacted law, P.

In equilibrium to this game, the legislature always enacts a policy burdening the minority, and would always discipline the court if it vetoed the law. The court never vetoes the legislature’s enactment burdening minorities, and the voter never disciplines the legislature if the legislature disciplines the court for vetoing the policy. Indeed, the voter would discipline the legislature if the court vetoed the law and the legislature did not discipline the court. Symbolically, the equilibrium strategy combination, in sequence of legislature, court, and voter, for all q is

((E, D) | c, (E, D) | d,), (\bar{V} | c, V | d), (\bar{Δ} | D, Δ | \bar{D}, \bar{Δ} | \bar{V})) .

These strategies are dominant for all of the actors, so we omit the proof.

In this game, because the judiciary deploys only a countermajoritarian veto, the legislature does not tolerate judicial review, and the public always sides with the legislature against the court. So judges never act in a countermajoritarian fashion to veto legislation that burdens minorities.⁵

Why might popular majorities support courts that actually exercise a countermajoritarian veto against a majority-supported legislature? To answer this puzzle we first consider how exercise of the judicial veto can serve the interests of popular majorities. This possibility, we argue, carves out a space for judges to protect minorities at least some of the time, and voters will tolerate this protection, at least some of the time, because of the net benefit judicial protection confers on the popular majority’s interests. We now turn to develop this argument.

6 Adding a second period to the game

At the end of the first period of the game, the voter determines whether to punish the legislature electorally for its response to the court’s action. Considered by itself, the voter always sides with the legislature in the period 1 game. As a result, judges never act to protect minorities. The second period game we develop (sometimes) changes that first period outcome.

The second period of the game is motivated by Hamilton’s observation in The Federalist No. 78 that judiciaries not only protect minorities against majority oppression, but judiciaries can also act as ‘an intermediate body between the people and the legislature’ (Hamilton, 1961: 525). That is, judiciaries can protect popular majorities from corrupt or oppressive legislative majorities. Formalizing Hamilton’s claim, the second stage of the model allows for the possibility that a corrupt or captured legislature can burden the general population. Legislative ‘capture’ is not necessarily a narrow form of political corruption in which legislators receive financial value for their votes. The model simply requires some outcomes in which legislators behave factiously or enact ‘special legislation.’ The second stage can be motivated whether in response to actual corruption, or through rent-seeking legislation, crony-capitalism, or legal privileges accorded to any legislatively favored class. For expositional ease, we refer to this as ‘graft’ which exists with a given probability. When the legislature enacts policies, some policies may benefit popular majorities, but other policies may benefit only legislators, or close associates of legislators, at the expense of the majority.⁶

Voters know probabilistically that a legislative enactment may result from graft. The legislature’s enactment is ‘grafty’ in period 2 with probability r. The available actions in the second period of the game of course depend on which path is followed in this first period of the game. Nodes followed by the designation ‘Ind’ in Figure 1 mean that an independent judiciary survives the first period of the game. (In the single-stage game, while the judiciary is not officially subjugated by the legislature, the countermajoritarian-type court was nonetheless cowed from exercising its veto by the threat of legislative sanctions and the absence of popular support.) The designation ‘Not Ind’ means that the judiciary was formally subjugated by a vote of the legislature and a system of legislative supremacy was created. Each path implies a different subgame in the second period of the game. We will consider each in turn, beginning with the simpler of the two, the legislative-supremacy subgame.

6.1 The period 2 legislative supremacy subgame

The sequence of this subgame is as follows (see Figure 2). First, the type of the legislative majority is selected. With probability r the legislative majority is grafty (G); that is, it enacts a policy that will benefit only the legislators themselves (or their allies) and burden the voters. With probability 1 –r, the policy generates benefits to the voters $(\bar{G}) .$ Next, the legislature (whether grafty or not) chooses whether to enact the legislation. If the legislature enacts a policy, the voter chooses whether to discipline the legislature. If the voter does not discipline the legislature, $(\bar{Δ}),$ then the policy is implemented and payoffs accrue. If the voters discipline the legislature (Δ), then the current legislative majority is replaced by a new majority that repeals the legislation.

Figure 2.

Stage-two game between legislature and voter (no independent judiciary).

There are two pure-strategy equilibria to the subgame.

Proposition 1. Equilibria in the legislative-supremacy subgame are:

[A] For ½≥r, the voter never disciplines the legislature. Both types of legislature enact legislation. Or, $[(E | G, E | \bar{G}), (\bar{Δ} | E)] .$ The voter’s expected payoff in this equilibrium is P(1 – 2r). The payoff to both types of legislature is P–ϵ.

[B] For all r∈[0,1], the voter always disciplines the legislature if it enacts anything. Neither type of legislature enacts legislation in the subgame. Or, $[(\bar{E} | G, \bar{E} | \bar{G}), (Δ | E |)] .$ The payoff to all actors in this equilibrium is zero (0).

The proof of this proposition is straight forward, so we omit it. We allow the players to implement the Pareto dominating equilibrium, and do not worry about which equilibrium gets assigned the equality. Both types of legislature enact policies when ½≥r, and voters do not discipline them. Neither type of legislature enacts a policy when r > ½.

6.2 The period 2 independent judiciary subgame

We now consider the other period 2 subgame in which judicial independence continues from period 1. Table 2 lays out the sequence of play in this subgame. As in the legislative-supremacy subgame, the legislature has two types, one that prefers a grafty policy (G) with probability r, and one that prefers a policy that benefits the majority ( $\bar{G}$ ). The court also has two types, one in which the court’s preferences align with the preferences of the popular majority (M) with probability s, and one in which the court’s preferences align with the preferences of the legislative majority (L). The legislature and court know the other’s preferences. The representative voter knows only the probability distribution over both types.

Table 2.

Sequence of the second stage independent-judiciary subgame.

1. Probability assigned for both types of legislature (the likelihood that legislative preferences align with the median voter or that the policy results from legislative graft).
2. Probability assigned for both types of court (the likelihood that the court preferences align with the median voter or with the median legislator). Legislature and court know their own and each other’s type; voters know only the probability distribution.
3. Each type of legislature chooses whether to enact a policy or enact nothing.
4. Each type of court chooses to veto or affirm the policy.
5. Each type of legislature chooses whether to discipline the court if the court vetoed the policy.
6. Given the actions of the legislature and court, voters update their beliefs about the state of the world and choose whether to inform themselves of the legislative type (at a cost).
7. Given their informational decision, voters again update their beliefs about the state of the world and choose whether to discipline the legislature for the action it took (irrespective of whether the court did or did not veto the policy).
8. Payoffs accrue.

First, each type of legislature chooses whether to enact a policy or enact nothing. Next, each type of court chooses to veto (V) or to affirm the policy ( $\bar{V}$ ), if it is enacted. Each type of legislature then chooses whether to discipline the court if the court vetoes the policy. (If disciplined, a compliant court is appointed and the grafty policy reimplemented.) Given the actions of the legislature and court, voters update their beliefs about the state of the world, and choose whether to discipline the legislature for the action it took (irrespective of whether the court did or did not veto the policy). Then payoffs accrue.

Payoffs are as follows. The legislative majority receives a policy payoff of P’ > 0 for enacting a policy that is ultimately implemented. As in period 1, the legislature incurs a decision cost, ϵ > 0, when it enacts a policy. (The legislature also incurs the decision cost when it disciplines the court.) If the legislature enacts no policy, then its policy payoff is zero. If it enacts a policy but the policy is struck down by the court, the legislature’s net payoff is –ϵ. If the legislative majority is disciplined by the voter and turned out of office, then it incurs a cost of C > 0, where C > P’ (i.e. legislators prefer to hold office than to implement their personally preferred policies). If the legislature enacts a grafty policy, then the popular majority receives a payoff of –P’. If the legislature enacts a non-corrupt policy, then the popular majority receives a payoff of P’. If the court’s type is pro-legislative, then it receives the same policy payoff as the legislative majority. If the court’s policy preferences align with the popular majority, then it receives the same payoffs as the voter. If the legislature disciplines the court, then the court pays a cost of –δ < 0, where δ > P (i.e. judges prefer to hold office than to receive a given policy payoff). If the legislature enacts no policy, then all actors’ payoffs are zero.

A partial-pooling/semi-separating equilibrium, defined by the court’s strategy, is played by the players. The following proposition states equilibrium strategies and beliefs:

Proposition 2. In equilibrium, the legislature implements the following strategy:

$((\bar{E} | GM, E | GL, E | \bar{G} M, E | \bar{G} L) (\bar{D} | VGM, \bar{D} | VGL, \bar{D} | V \bar{G} M, \bar{D} | V \bar{G} L))$ for $s \geq 2 - \frac{1}{r}$ and $((\bar{E} | GM, \bar{E} | GL, \bar{E} | \bar{G} M, \bar{E} | \bar{G} L) (\bar{D} | VGM, \bar{D} | V \bar{G} L, \bar{D} | V \bar{G} M, \bar{D} | V \bar{G} L))$ when $s < 2 - \frac{1}{r} .$

The court implements the following strategy: $(V | GM, \bar{V} | GL, \bar{V} | \bar{G} M, \bar{V} | \bar{G} L)$

The voter implements the following strategy: $(Δ | D, \bar{Δ} | \bar{D})$ for $s \geq 2 - \frac{1}{r}$ and $(Δ | D, Δ | \bar{D})$ when $s < 2 - \frac{1}{r} .$

Given the equilibrium strategies, beliefs of the voter if there is a judicial veto are:

β_{1} (G, M) = 1, β_{2} (G, L) = 0, β_{3} (\bar{G}, M) = 0, β_{4} (\bar{G}, L) = 0 .

Given the equilibrium strategies, if there is no judicial veto, the voter’s beliefs are: ${β'}_{1} (G, M) = 0, {β'}_{2} (G, L) = \frac{r (1 - s)}{1 - rs}, {β'}_{3} (\bar{G}, M) = \frac{(1 - r) s}{1 - rs}, {β'}_{4} (\bar{G}, L) = \frac{(1 - r) (1 - s)}{1 - rs} .$

Off-equilibrium path beliefs for the voter that support the equilibrium if the voter observes the off-equilibrium path action of the legislature disciplining the court would be: $β_{1}^{″} (G, M) = 1, β_{2}^{″} (G, L) = 0, β_{3}^{″} (\bar{G}, M) = 0, β_{4}^{″} (\bar{G}, L) = 0 .$

Proof: See Appendix 1.

In this semi-separating/partial-pooling perfect-Bayesian equilibrium the legislature does not enact legislation if its type is G and the court’s type is M. It enacts legislation in all other type configurations. The court vetoes legislation only when its type is M and the legislature’s type is G. It affirms in all other type configurations. The voter disciplines the legislature if it disciplines the court, and reelects the legislature if it does not discipline the court.

Note that even if the court does not veto the legislation, and even though the voter does not know the true state of the world with certainty, the semi-separating/partial-pooling strategy of the court allows the voter to update beliefs. Without the veto, the voter’s belief is that the probability that GL is the true state of the world is r(1 –s). After observing the court’s action, the voter knows that GL is the true state of the world with greater probability:

\frac{r (1 - s)}{1 - rs} > r (1 - s) .

So even when the court does not exercise its veto, its existence and its independence to exercise its veto in one possible state of the world nonetheless signals useful information to the voter about its type and the type of the legislature.

6.3 The gain from judicial review

Without judicial review, the legislature enacts legislation only when the probability that the legislation represents graft is less than one half (or r≥½). If r > ½, then the voter will on average be better off by disciplining the legislature whenever it enacts anything. With judicial review, voters know that the court will sometimes veto legislative graft. As a result, they will not discipline the legislature for some values of r > ½. Specifically, voters will not discipline the legislature for

s \geq 2 - \frac{1}{r} .

This is illustrated in Figure 3. The area above the curve for r≥½ in Figure 3 represents the gain from having judicial review: With judicial review the legislature can safely enact additional legislation without fear of being disciplined by the voter. The voter gains on average as well, which is why they do not discipline the legislature given the signal of the court’s actions. In addition, the voter gains when r < ½ with judicial review because legislative graft is deterred by the court when it is aligned with the popular majority, which it is with probability s. Overall, then, the voter’s gain from judicial review is

\begin{matrix} \int_{r = 0}^{r = 1 / 2} sP' dr + \frac{1}{2} sP' - \int_{r = 1 / 2}^{r = 1} sP' (2 - \frac{1}{x}) dr = \frac{1}{2} sP' \\ + \frac{1}{2} sP' - {sP' (2 r - \ln (r)) |}_{r = 1 / 2}^{r = 1} = 0.693 sP' . \end{matrix}

This is the gain in the stage 2 subgame to the voter from keeping the court independent relative to allowing the legislature to subjugate the court in that stage.

Figure 3.

Added value of judicial review to voter in r-s space.

6.4 Voters roll back gains from judicial review in stage 2 to offset losses in stage 1

The gain from judicial review described above accrues only in the second stage of the game. The voter still incurs loss from judicial review in the first stage of the game if the court ever actually protects minorities against majoritarian policies. If judges are free to protect, then, in the first stage of the game, the voter loses P with probability 1 –q (which is the probability the court wants to protect the minority). Judicial protection of minorities is only loss to the voter in the first stage, which is why the voter never supports countermajoritarian judicial behavior when the stage 1 game stands alone. But when we include the second stage of the game, the voter can have an incentive in the first stage of the game to protect the court from legislative discipline. This condition occurs when the gain to the voter in the second stage of the game is greater than the loss to the voter in the first stage of the game, when

0.693 sP' > (1 - q) P .

This off-equilibrium-path flip for voters affects the incentives facing the countermajoritarian court on the (original) equilibrium path: If the judge desires to protect minorities, the judge can now do so without fear of legislative punishment, knowing that the voter will deter the legislature from disciplining the judge. The court is now free within a set of parameters to operate in a countermajoritarian fashion when it wants to.

7 Implications of the model

We have provided a theoretical account of a majoritarian basis for judicial countermajoritarianism. The model describes strategic interactions among legislatures, courts, and voters. Notable aspects of this account are, first, majority voter support for judicial review is instrumental and self-serving. The majority does not preserve judicial review because of an abstract commitment to courts or a desire to protect minority interests. Rather, the majority (sometimes) supports judicial independence to preserve the institution in the stage 2 subgame in order to ensure that its interests are protected. Judicial protection of minority interests in this game is only an unintended byproduct of majoritarian politics.

Secondly, the public’s tolerance for judicial countermajoritarianism has limits. If the stage 1 cost of judicial independence gets too large, or if stage 2 benefits of judicial independence get too small (relative to each other), then voters will not support judicial independence and instead will support a system of legislative supremacy. There is no reason to think that these costs and benefits remain the same over time. Voters will adjust their demands for judicial independence and legislative court curbing over time in response to changes in the (expected) behavior of courts and legislatures. As a result, the ability of courts to behave in a countermajoritarian fashion may vary with public assessments of the costs and benefits of judicial independence.

The model provides an explanation for judicial countermajoritarianism and advances the positive theory of legislative maintenance of judicial review by specifying a rational, electoral mechanism under some realistic conditions.

The model indicates several predictions about public evaluations of legislative and judicial institutions. Popular support for judicial independence depends on type-space parameter ‘r,’ the public’s perception of the probability that the legislature in the second period is ‘grafty.’ Popular support for judicial review also depends on ‘s,’ the public’s belief about the probability the court’s preferences in the second stage of the game align with its interests or with the legislature’s interests. In particular, the model illustrates that popular support for countermajoritarian judicial review (support for judicial review when s is relatively high) depends on the public’s perception of the likelihood that legislative policies result from corruption (i.e. that r is relatively high).

In the model, these two factors weigh on a summary judgment about whether to discipline a legislature for court curbing. Relatedly, although outside the model, these two factors should influence expressed public confidence in legislatures and courts, respectively.

Specifically, the model predicts a negative association between the public’s perception of the probability of legislative capture or corruption and the standing of a legislature in a separation-of-powers system. Increased prospects for legislative corruption should decrease the relative public standing of the legislature, and decreased prospects for legislative corruption should increase the relative public standing of the legislature, all else being equal.

Additionally, the model predicts a positive relationship between public perceptions of the alignment of the preferences of a court and those of the public with public support for the judiciary in a separation-of-powers system. Increased convergence between judicial preferences and public preferences should be associated with greater public support for a court relative to a legislature. The model suggests an interactive effect between perceptions of judicial convergence with public preferences and legislative corruption: Tolerance for judicial countermajoritarianism should be greater when prospects for legislative corruption are relatively high. Thus, the negative effect on the public standing of a court relative to a legislature for making decisions with countermajoritarian policy implications should be smaller when perceptions of prospects for legislative corruption are relatively high, and larger when perceptions of legislative corruption are relatively low.

There is substantial empirical support for the first two hypotheses in research on public evaluations of Congress and the Supreme Court. First, aggregate popular support for Congress, expressed as ‘approval,’‘confidence,’ or related concepts, is negatively related to congressional scandals (Bowler and Karp, 2004; Durr et al., 1997; Patterson and Magleby, 1992; Dancey, 2012). There is some evidence that this effect is especially pronounced for scandals involving multiple members of Congress using their public office for private financial gain (Bowler and Karp, 2004; Durr et al., 1997). Information that Congress’s members may be more ‘grafty’ than citizens previously knew is therefore associated with a behavioral expression of reduced political support for Congress.

Second, there is substantial evidence that political agreement with the Supreme Court’s decisions is associated with positive evaluations of the Court’s job performance in the mass public (Ansolabehere and White, 2018; Durr et al., 2000; Malhotra and Jessee, 2014; Mondak and Grosskopf, 1998). Similarly, disagreement with salient Supreme Court decisions is associated with lower levels of expressed support for the Supreme Court’s legitimacy (i.e. lower levels of diffuse support) (Bartels and Johnson, 2013; Christenson and Glick, 2015; but see Gibson and Nelson, 2014). Patterns or salient instances of Supreme Court decision-making inconsistent with popular majorities’ preferences for case outcomes suggest misalignment between the public’s interests and the Court’s political orientation and predict reduced expressed support for the Court.

We know of no published studies directly assessing the third expectation about the interactive effects of perceptions of legislative corruption and alignment between judicial decision-making and public opinion for comparative evaluations of legislatures and courts.

Another feature of the model is that legislatures will avoid disciplining courts for invalidating their policy choices when voters’ belief in legislative corruption (r) is high and courts’ preferences align with popular preferences (s). In other words, the model predicts legislative maintenance of judicial review is conditional on, among other things, features of voters’ beliefs about the quality of their political representation in legislatures and courts. The empirical research described above reports popular evaluations of Congress and the Supreme Court, respectively, are influenced by these factors. It follows that congressional action enhancing or undermining independent judicial review should be associated with changing evaluations of Congress and the Supreme Court in the mass public. This pattern is evident in empirical studies of congressional maintenance of independent judicial review.

Americans’ confidence in the Supreme Court predicts Congress’s propensity to acquiesce to judicial decisions striking down federal laws (Nelson and Uribe, 2017; see also Clark, 2009). Congress’s allocation of greater discretion and resources to the Supreme Court is positively associated with public confidence in the Court and negatively associated with public support for Congress (Ura and Wohlfarth, 2010). Similar connections between public support for courts and elements of judicial independence are evident in other developed and developing democracies (Gibson et al., 1998; Helmke, 2010; Staton, 2010; Taylor-Robinson and Ura, 2013; Vanberg, 2005).

In addition to providing predictions about legislative responses to public opinion, the model also suggests opportunities for strategic behavior for courts. Judicial actors who were aware of voters’ evaluations of legislative corruption and courts’ alignment with public opinion could act strategically to avoid being disciplined by legislatures. This would imply something like declining to invalidate laws when legislatures were relatively popular compared to courts, and preserving some tolerable (to voters) consistency between public sentiment and case outcomes. Empirical research on the US Supreme Court’s decision-making shows evidence for both of these aspects of strategic judicial behavior.

There is evidence of an association between the public standing of the Supreme Court and Congress and the Court’s constitutional decision-making. The frequency of Supreme Court decisions invalidating federal laws is positively associated with public support for the Supreme Court (Clark, 2009, 2011), and the invalidation of federal laws is negatively associated with popular support for Congress (Merill et al., 2017). There is also a well-documented association between Supreme Court decision-making and public mood. Changes in the ideological preferences of Americans predict changes in the ideological direction of Supreme Court decision-making (e.g. Casillas et al., 2010; Epstein and Martin, 2010; Mishler and Sheehan, 1993; McGuire and Stimson, 2004).

Again, these observed and expected patterns in mass behavior, legislative support for independent judicial review, and judicial decision-making do not uniquely follow from our model’s predictions. Indeed, there are relatively obvious behavioral reasons to expect corruption and disaffection with court’s decision-making to weigh on public evaluations of legislatures and courts, for example. Our model is notable, though, for its alignment with a variety of empirical research on the behavior of voters, Congress, and the Supreme Court. Taken together, the consistency between the model’s predictions and implications and observed patterns of mass and elite behavior, first, suggests the model is a reasonable representation of important political dynamics that structure legislative support for judicial review. It further indicates that the model is a useful step forward for the positive theory of judicial independence, providing the start of a unified model for voter behavior, legislative support for courts, and judicial behavior that has been absent from the literature so far.

Footnotes

Appendix 1. Proof of Proposition 2

Here * refers to the conjectured equilibrium strategies.

For this type of legislature, the payoff to the conjectured equilibrium is zero.

E U_{L} (*) = 0 .

If the grafty legislature deviates and enacts a grafty policy, $E U_{L} (E / *) = - ε < 0 .$ So the grafty legislature will not enact a grafty policy. It does not do better if it deviates from the conjectured strategy and disciplines the court off the equilibrium path, $E U_{L} ((D | VGM) / *) = 0 .$ So there is no incentive to deviate. If it deviates both to enact and discipline the type M court when it vetoes the grafty policy, it will be turned out of office by the voters, $E U_{L} (E, (D | VGL) / *) = - C - ε < 0 .$ So there is no incentive to deviate for the type G legislature with the type M court.

Payoff of the conjectured equilibrium strategy for the type G legislature with the type L court is $E U_{L} (*) = P' - ε > 0 .$ If it deviates from the conjectured equilibrium and does not enact a policy, then $E U_{L} (\bar{E} / *) = 0 < P' - ε .$ It has no incentive to deviate. If it deviates to discipline the type L court (the type whose preferences align with the grafty legislature) the voters will, in turn, discipline the legislature, its payoff will be $E U_{L} (D / *) = - ε < P' - ε .$ And if the grafty legislature deviates so as not to enact a policy and deviates off the equilibrium path to discipline the court if the court vetoes the policy, then $E U_{L} (E, (D | VGL) / *) = 0 .$ There is no incentive to deviate.

Implementing the conjectured equilibrium returns $E U_{L} (*) = P' - ε$ to the non-grafty legislature. If the legislature enacts nothing, then it receives a payoff of $0 < P' - ε .$ If it changes its off equilibrium path action and disciplines the type M court if the court vetoes its policy, then its payoff is still $P' - ε$ (because the equilibrium path has not changed), so it has no incentive to deviate. And if the non-grafty legislature does not enact a policy and disciplines the court (off the path), its payoff would again be $0 < P' - ε .$ So it has no incentive to deviate.

Finally, we consider the non-grafty legislature with the court whose preferences align with the legislature. Its payoff for the conjectured equilibrium strategy profile is $E U_{L} (*) = P' - ε .$ Because the type L court aligns with the legislature’s type, and the legislature is non-grafty, the payoffs to respective deviations are identical to case A.iii above. Therefore, the legislature has no incentive to deviate.

The type M court would veto grafty legislation, so the type G legislature does not enact a policy. The court’s payoff for the conjectured equilibrium is $E U_{C} (*) = 0 .$ The court’s action is off the equilibrium path when the legislature does not enact a policy. If the court deviates from its conjectured strategy, its payoff remains zero given the legislature’s conjectured action. So the court has no incentive to deviate from its conjectured strategy in the equilibrium profile.

When the court’s type aligns with the legislature, and the legislature is grafty, it does not veto the grafty enactment. Its payoff is $E U_{C} (*) = P' .$ If the type L court deviates and vetoes the grafty policy its payoff is now $E U_{C} (V / *) = 0 < P' .$ It has no incentive to deviate.

When the court’s preferences align with the popular majority and the legislature is non-grafty, the court’s payoff for the conjectured equilibrium strategy is $E U_{C} (*) = P' .$ If it deviates from the conjectured strategy and vetoes the law, its payoff is zero, $0 < P' .$ Therefore, it has no incentive to deviate.

The court’s preferences align with the legislature’s preferences, but the legislature’s type is non-grafty. The payoffs for this type configuration are the same as B.iii above. Therefore, this type of court will not deviate from the equilibrium conjecture.

First, the payoff for the voter when the legislature enacts and the voter implements the strategy $(Δ | D, \bar{Δ} | \bar{D})$ is

[1]

E U_{V} (*) = \frac{r (1 - s)}{1 - rs} (- P') + \frac{s (1 - r)}{1 - rs} (P') + \frac{(1 - s) (1 - r)}{1 - rs} (P') = \frac{P' (1 - 2 r + rs)}{(1 - rs)} .

When the legislature enacts legislation and the voter implements the strategy that always disciplines the legislature $(Δ | D, Δ | \bar{D})$ the voter’s payoff is

[2]

E U_{V} (*) = 0 .

A few lines of algebra returns that $[1] \geq [2] when s \geq 2 - \frac{1}{r},$ and vice versa when $s < 2 - \frac{1}{r} .$ Provided the proper direction of the inequality, the voter has no incentive to deviate from $(Δ | D, \bar{Δ} | \bar{D})$ to $(Δ | D, Δ | \bar{D})$ or from $(Δ | D, Δ | \bar{D})$ to $(Δ | D, \bar{Δ} | \bar{D}),$ respectively.

Secondly, in equilibrium the legislature never disciplines the court, therefore the voter’s payoffs remain the same whether it deviates to strategies $(\bar{Δ} | D, \bar{Δ} | \bar{D})$ or $(\bar{Δ} | D, Δ | \bar{D}) .$ Therefore the voter has no incentive to deviate from its respective equilibrium strategies to either of those alternative strategies.

Finally, if the voter observes the off-equilibrium action of the legislature disciplining the court, then stipulating the following (intuitive) off-equilibrium beliefs for the voter would support the voter’s equilibrium strategy of disciplining the legislature if the voter sees the legislature disciplining the court: ${β'}_{1} (G, M) = 1, {β'}_{2} (G, L) = 0, {β'}_{3} (\bar{G}, M) = 0, {β'}_{4} (\bar{G}, L) = 0 .$

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Support for this project from National Science Foundation, Grant #SES-1024106, is gratefully acknowledged.

ORCID iD

James R. Rogers

Notes

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