Pushing Boundaries: How Lawmakers Shape Judicial Decision-Making

• Author: Philipp Schroeder
• DOI: http://doi.org/10.1177/00104140221089649
• Published date: 01 December 2022
• Date: 01 December 2022
• Subject Matter: Articles

https://doi.org/10.1177/00104140221089649

Comparative Political Studies

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DOI: 10.1177/00104140221089649

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Article

Pushing Boundaries:

How Lawmakers Shape

Judicial Decision-Making

Philipp Schroeder1

Abstract

Existing literature highlights that constitutional courts influence lawmakers’

policy choices without actively intervening in the policymaking process.

Lawmakers know that courts may scrutinize their acts and have incentives

to amend their policies to pre-empt judicial interventions. However,

evidence suggests that lawmakers are not always prepared to sacrifice

policy objectives to avoid censure from courts. I develop a formal model

showing how lawmakers who provoke confrontations with courts shape

judicial decision-making. Drawing on an original dataset of German federal

laws adopted between 1977 and 2015 that were reviewed by the German

Federal Constitutional Court, I then show that the Court moderated its

strike rate of laws when lawmakers had dismissed credible advice that their

acts were unconstitutional. The theoretical argument and empirical evidence

indicate that courts are more likely to show deference to lawmakers who

push constitutional boundaries in their policy choices.

Keywords

law and courts, legislative studies, autolimitation, constitutional review,

separation of powers

1Ludwig-Maximilians-University Munich, Munich, Germany

Corresponding Author:

Philipp Schroeder, Ludwig-Maximilians-University Munich, Oettingenstr. 67, Munich 80539,

Germany.

Email: P.Schroeder@gsi.uni-muenchen.de

1089649

CPSXXX10.1177/00104140221089649Comparative Political StudiesSchroeder

research-article2022

2022, Vol. 55(14) 2447–2479

2448 Comparative Political Studies 55(14)

The existing literature on the separation-of-powers in advanced democracies

has long recognized that courts reviewing the actions of the legislative and

executive branches passively constrain governing majorities. Prudent law-

makers anticipate that their acts will be scrutinized by courts and are well-

advised to amend (or auto-limit) their policy choices when a judicial veto is

likely (see Stone, 1989; Stone, 2000; Vanberg, 1998).

But not all lawmakers are willing to sacrifice their preferred policies to

pre-empt censure from courts. For instance, in December 2008, German law-

makers adopted an act allowing law enforcement agents to covertly monitor

suspects’ online activities. Surprisingly, lawmakers flouted advice from con-

stitutional lawyers, who had pointed out that the German Federal

Constitutional Court struck a state law containing virtually the same provi-

sions only a few months before and had noted that lawmakers’ plans would

meet the same fate.1

Why do lawmakers provoke confrontations with courts capable of striking

their acts? How do courts respond when lawmakers pursue evidently uncon-

stitutional policies? I offer a novel argument and original empirical evidence

addressing these questions. In the Federalist 78, Hamilton (1961, 490)

observes that courts are hamstrung by an enforcement problem and ‘must

ultimately depend upon the aid of the executive arm even for the efficacy of

[their] judgements’. Existing literature indicates that courts are attentive to

signals of lawmakers’ future non-compliance with their judgements and try to

avoid all too frequent tensions with the elected branches (see Clark, 2010;

Vanberg, 2005; Whittington, 2003; Bailey & Maltzman, 2011). I develop a

formal model, which shows that lawmakers’ choices during the policymaking

process allow courts to anticipate whether or not lawmakers are prepared to

challenge the authority of courts and evade compliance with unfavourable

judgements. I argue that lawmakers who provoke confrontations with the

judiciary by pursuing evidently unconstitutional policies induce courts to

show deference to the elected branches.

I present evidence consistent with these expectations, drawing on original

data from legislative proceedings in the German Bundestag and the German

Federal Constitutional Court’s review of federal laws adopted between 1977

and 2015. The theoretical argument and empirical evidence presented in this

article offer a new perspective on how well-established courts in modern

democracies strategically choose when to pick a fight with the legislative and

executive branches (Carrubba, 2009; Epstein & Knight, 1998; Epstein &

Jacobi 2010). The insights offered here also tap into a long-standing norma-

tive debate revolving around the role of courts in democratic polities and

their ability to judicialize the policymaking process (Tate, 1995; Stone, 2000;

Hirschl, 2009). While existing research claims that ‘[t]he work of

Schroeder 2449

governments and parliaments is today structured by an ever-expanding web

of constitutional constraints’ (Stone, 2000, 1), the article’s key implication is

that lawmakers who push constitutional boundaries in their policy choices

induce courts to loosen these constraints.

The article proceeds as follows. The next section briefly reviews the exist-

ing literature on legislative-judicial relations and presents evidence from

interviews with German lawmakers on the elected branches’ anticipation of

constitutional review. The third section introduces the formal model and dis-

cusses its comparative statics. The fourth section fields observational data

from the German Federal Constitutional Court’s exercise of constitutional

review to evaluate support for the theoretical model’s empirical implications.

The article concludes with a discussion of the empirical findings and

considers their normative implications.

Strategic Anticipation in Legislative-Judicial

Relations

The existing literature on the separation-of-powers has highlighted an

enforcement dilemma for courts lacking immediate control over the imple-

mentation of their own rulings. Vanberg (2001, 347) notes that ‘courts with

the power to annul legislation or administrative acts must frequently rely on

the willingness of other branches to implement their decisions because they

may require a legislative or administrative response’. Courts themselves can-

not coerce the legislative and executive branches into compliance with their

decisions and lawmakers enjoy some discretion when it comes to implement-

ing judicial decisions (see Carrubba & Zorn, 2010; Carrubba, 2009; Staton &

Vanberg, 2008). Following a judicial veto, lawmakers may adopt a policy that

is substantively equivalent to the one ruled unconstitutional, evade compli-

ance through informal and non-statutory arrangements, or delay implementa-

tion indefinitely (Krehbiel, 2016; Fisher, 1993; Kapiszewski & Taylor, 2013).

Recurring non-compliance with their decisions is a concern for courts.

Hall (2014, 354) notes that ‘[f]requent nonimplementation of the Court’s rul-

ings might reduce its power and degrade its legitimacy over time’. Courts’

enforcement dilemma and motivation to protect their institutional integrity

has spawned a literature expecting courts to anticipate lawmakers’ non-com-

pliance and exercise constitutional review strategically (see Epstein &

Knight, 1998; Bergara et al., 2003; Gely & Spiller, 1990). This literature

offers evidence of courts seeking out information to mitigate their uncertainty

about the likelihood of non-compliance (see, for example, Clark, 2009,

2010). Work by Vanberg (2001, 2005) suggests that the German Federal

Constitutional Court evaluates the transparency of the political environment