Political Influence and Career Judges: An Empirical Analysis of Administrative Review by the Spanish Supreme Court

• Author: Nuno Garoupa,Marian Gili,Fernando Gómez‐Pomar
• DOI: http://doi.org/10.1111/j.1740-1461.2012.01270.x
• Published date: 01 December 2012
• Date: 01 December 2012

Political Influence and Career Judges:

An Empirical Analysis of Administrative

Review by the Spanish Supreme Court

Nuno Garoupa, Marian Gili, and Fernando Gómez-Pomar*

This article develops an empirical analysis of judicial behavior in the Spanish Supreme

Court, a court of law dominated by career judiciary. We focus on administrative review. The

evidence seems to confirm that a career judiciary is not strongly politically aligned and favors

consensus, formalism, and dissent avoidance. Notwithstanding, we detect a significant rela-

tionship between the decisions of the Court and the interest of the government. We suggest

that our empirical analysis makes a significant contribution to undermine the myth of

political insulation by career judges. Unlike previous literature, however, we argue and

illustrate that judicial politicization can be consistent with consensus and dissent avoidance.

I. Introduction

Judicial behavior in any court can be explained by individual preferences, intracourt

interaction, and the influence of other relevant actors, including the political branches of

government and the general public. Judicial preferences reflect personal attributes and

attitudes in respect to each individual case, case law more generally, and legal policy

implications.1Intracourt interaction captures the collegiality of judicial decision making.

Judges have to weigh their individual preferences (their disposition toward a particular

outcome) and their influence on the decisions of the court (their ability to shape the

outcome in terms of public policy).2At the same time, judges also take into account the

*Address correspondence to Nuno Garoupa, H. Ross and Helen Workman Research Scholar and Co-Director, Illinois

Program on Law, Behavior and Social Science at the University of Illinois College of Law, 504 E. Pennsylvania Ave.,

Champaign, IL 61820. Gili is Assistant Professor of Law at Universitat Pompeu Fabra (Barcelona); Gómez-Pomar is

Professor of Law and Economics at Universitat Pompeu Fabra.

We are grateful to three anonymous referees, CELS 2011, SIDE 2011, and IPSA 2012 participants, and Yun-chien

Chang, Giovanni Mastrobuoni, and Benjamin Engst for important suggestions, as well as to seminar participants at the

Universidad de Granada, Universidade do Minho, and Universidad Autónoma de Madrid. Excellent research assist-

antship was provided by Roya H. Samarghandi. Nuno Garoupa acknowledges financial support by FCT, Portuguese

Ministry of Higher Education and Science, under Grant PPCDT/JUR/55752/2006. Fernando Gómez acknowledges

the financial support of the Spanish Ministry of Education and Science, under Grants SEJ2006-10041 and DER2010-

15624. The usual disclaimers apply.

1For judicial preferences, see Posner (1993, 2005).

2See Cameron and Kornhauser (2010).

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Journal of Empirical Legal Studies

Volume 9, Issue 4, 795–826, December 2012

795

interests of external audiences.3They might be worried about exhibiting loyalty to the

appointer (given the prospect of a future career under political patronage). The possible

reactions of the executive and legislative branches are likely to be anticipated by the

judiciary and influence its decisions. The positive or negative perception by the general

public might also be of significance to individual judges and collectively to the court or the

group more broadly.

Different theories have been developed, mainly in the context of the United States,

to explain judicial decision making. In this respect, there is an important ongoing debate

over whether judges are guided by the law or by personal ideology. Formalists take the

stance that judges simply interpret and apply the constitution and the law in a conformist

view of precedents. Judges are largely guided by what the law says and abide by a strict legal

authoritative interpretation.4Under a completely different perspective, the attitudinal

model sees judicial preferences, with special emphasis on ideology, as the main explanatory

model. Finally, agency theorists recognize the importance of judicial preferences but argue

that they are implemented taking into account political and institutional realities.5

The distinction between policy preferences and dispositional preferences is signifi-

cantly important to understand judicial behavior.6Policy preferences are associated with

the court’s opinion, while dispositional preferences reflect an ideal position associated with

the judge’s opinion. Collegial judges have to trade policy losses (whether or not an indi-

vidual judge supports the court’s opinion) against dispositional losses (whether or not an

individual judge delivers an opinion consistent with the most preferred solution). Policy

losses are determined by the interaction between judges, while dispositional losses are

independently determined by each individual judge. While the attitudinal model focuses

on dispositional losses, the literature on strategic judicial decision making takes into

account both aspects.7

3See generally Garoupa and Ginsburg (2010).

4For a defense of the formalist view, criticizing the empirical studies showing the presence of political influence in

judicial decision making, see Edwards and Livermore (2009). For a response to this argument, from a nonformalist

perspective, see Posner (2010, 2011).

5For discussion, see among others, Brenner and Spaeth (1988), Segal and Cover (1989), Gely and Spiller (1990),

Epstein and Knight (1998), Segal and Spaeth (2002), and Hansford and Springgs (2006). At a lower court level, see

Kim (2009) and Berdejó and Chen (2011).

6For example, see Daughety and Reinganum (2006). Cameron and Kornhauser (2010) show that the final outcome

might not be the position of the median justice because it depends on the entire distribution of ideal points. The

model also suggests the importance of opinion assignment. See also Kornhauser (1992), explaining that path

dependence in collegial courts results from the fact that no single judge controls law making, and Kornhauser (2003),

pointing out that, due to collective decision making, case-by-case and issue-by-issue approaches can result in different

outcomes. The development of legal doctrines is determined crucially by how collegial courts operate.

7See Spiller and Gely (2007), presenting an extensive survey of judicial behavior. The authors argue that for civil-law

jurisdictions, because of a strong and unified polity, courts are inherently more deferential because exercising

independence will trigger political conflict and retaliation. Courts are more likely to go against the government when

there is a divided polity.

796 Garoupa et al.

These different theories of judicial behavior cannot be convincingly addressed

without an adequate empirical assessment. Legal scholars and political scientists have

focused much empirical attention on the U.S. Supreme Court.8Empirical debate about

other higher courts is an emerging literature, with notable applications in Europe and

North America,9in Asia,10 and in Latin America.11

This article contributes to the empirical literature on judicial behavior by looking at

administrative review in the context of the Spanish Supreme Court. Formally speaking,

administrative review is not constitutional review but it has clear political implications. The

defendant is the executive branch and the subject of review is not a single administrative

action or decision based on the application of a general provision passed by a given

government, but the general provision itself when it is contrary to the law or the 1978

Spanish Constitution.12 In this sense, administrative review by the Spanish Supreme Court

is significantly different than that by U.S. courts. The former is fundamentally abstract in

nature (focusing on legal rules of general applicability and less on individual facts) whereas

the latter is essentially concrete in nature, a distinction also reflected in constitutional

review. In fact, legal scholars have emphasized administrative review as quasi-constitutional

in nature.13 Therefore, the political incentives should be as relevant in administrative review

as they are in constitutional review.

The institutional setting has important unique features. Administrative review is

largely performed by career judges.14 The Spanish Supreme Court justices operate in a

traditional civil-law setup that disfavors division, dissent, and public controversy within the

8See Brenner and Spaeth (1988), Segal and Cover (1989), George and Epstein (1992), Epstein and Knight (1998),

Epstein et. al. (2001), Segal and Spaeth (2002), Goff (2006), Hansford and Springgs (2006), and Lax and Cameron

(2007).

9On Canada, see Tate and Sittiwong (1989), Alarie and Green (2008), Green and Alarie (2009), and Songer et al.

(2011). On Germany, see Schneider (2005) and Vanberg (2005). On Italy, see Breton and Fraschini (2003), Fiorino

et al. (2007), Padovano (2009), and Dalla Pellegrina and Garoupa (2012). On Portugal, see Amaral Garcia etal.

(2009). On France, see Franck (2009, 2010). On Spain, see Garoupa et al. (forthcoming). On Israel, see Shachar et al.

(1997) and Eisenberg et al. (2011). On Australia, see Smyth and Narayan (2004).

10On Japan, see Ramseyer and Rasmusen (2003), and in particular on the Japanese Supreme Court, see Ramseyer and

Rasmusen (2006). On Taiwan, see Ginsburg (2003) and Garoupa et al. (2011). On the Philippines, see Escresa and

Garoupa (2012).

11On Argentina, see Chávez (2004) and Helmke (2004) as well as Iaryczower et al. (2002, 2006). On Chile, see Hilbink

(2007) and Carroll and Tiede (2011). More generally, see Kapiszewski and Taylor (2008).

12The Spanish Constitutional Court does not formally decide on the validity of rules that are not legislative in nature,

that is, not passed by the national or a regional parliament, but instead by the relevant executive (national or

regional) or agency. Control over the legality and constitutionality of those nonlegislative rules corresponds to

ordinary administrative courts. This does not exclude the competence of the Spanish Constitutional Court to

indirectly declare the unconstitutionality of infralegislative provisions by means of the individual complaints involving

fundamental rights (recurso de amparo) or conflicts of powers (conflicto de competencia).

13See Ginsburg (2012).

14On the distinction between career and recognition judiciaries, see Garoupa and Ginsburg (2011).

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