TY - JOUR

T1 - Constitutional courts as veto players

T2 - Lessons from the United States, France and Germany

AU - Brouard, Sylvain

AU - Hönnige, Christoph

N1 - Funding information: We are especially grateful to Cornell Clayton and the anonymous reviewers for helpful comments and suggestions as well as to Chantal Barry for the editing of the manuscript. Previous versions of this article have greatly benefitted from their presentation at the 2010 DVPW Sektionstagung Vergleichende Politikwissenschaft, at the 2010 IPSA Research Committee 09 Interim Meeting and at the 2010 MPSA Annual Conference. We would also like to thank the Deutsche Forschungsgemeinschaft (DFG) for supporting the project ‘Das Bundesverfassungsgericht als Vetospieler’ (grant number HO 4338/2-1). The usual disclaimer applies. This work is supported by a public grant overseen by the French National Research Agency (ANR) as part of the ‘Investissements d'Avenir’ programme LIEPP (ANR-11-LABX-0091, ANR-11-IDEX-0005-02).

PY - 2017/8

Y1 - 2017/8

N2 - The number of constitutional courts and supreme courts with constitutional review rights has strongly increased with the third wave of democratisation across the world as an important element of the new constitutionalism. These courts play an important role in day-to-day politics as they can nullify acts of parliament and thus prevent or reverse a change in the status quo. In macro-concepts of comparative politics, their role is unclear. Either they are integrated as counter-majoritarian institutional features of a political system or they are entirely ignored: some authors do not discuss their potential impact at all, while others dismiss them because they believe their preferences as veto players are entirely absorbed by other actors in the political system. However, we know little about the conditions and variables that determine them as being counter-majoritarian or veto players. This article employs the concept of Tsebelis’ veto player theory to analyse the question. It focuses on the spatial configuration of veto players in the legislative process and then adds the court as an additional player to find out if it is absorbed in the pareto-efficient set of the existing players or not. A court which is absorbed by other veto players should not in theory veto new legislation. It is argued in this article that courts are conditional veto players. Their veto is dependent on three variables: the ideological composition of the court; the pattern of government control; and the legislative procedures. To empirically support the analysis, data from the United States, France and Germany from 1974 to 2009 is used. This case selection increases variance with regard to system types and court types. The main finding is that courts are not always absorbed as veto players: during the period of analysis, absorption varies between 11 and 71 per cent in the three systems. Furthermore, the pattern of absorption is specific in each country due to government control, court majority and legislative procedure. Therefore, it can be concluded that they are conditional veto players. The findings have at least two implications. First, constitutional courts and supreme courts with judicial review rights should be systematically included in veto player analysis of political systems and not left aside. Any concept ignoring such courts may lead to invalid results, and any concept that counts such courts merely as an institutional feature may lead to distorted results that over- or under-estimate their impact. Second, the findings also have implications for the study of judicial politics. The main bulk of literature in this area is concerned with auto-limitation, the so-called ‘self-restraint’ of the government to avoid defeat at the court. This auto-limitation, however, should only occur if a court is not absorbed. However, vetoes observed when the court is absorbed might be explained by strategic behaviour among judges engaging in selective defection.

AB - The number of constitutional courts and supreme courts with constitutional review rights has strongly increased with the third wave of democratisation across the world as an important element of the new constitutionalism. These courts play an important role in day-to-day politics as they can nullify acts of parliament and thus prevent or reverse a change in the status quo. In macro-concepts of comparative politics, their role is unclear. Either they are integrated as counter-majoritarian institutional features of a political system or they are entirely ignored: some authors do not discuss their potential impact at all, while others dismiss them because they believe their preferences as veto players are entirely absorbed by other actors in the political system. However, we know little about the conditions and variables that determine them as being counter-majoritarian or veto players. This article employs the concept of Tsebelis’ veto player theory to analyse the question. It focuses on the spatial configuration of veto players in the legislative process and then adds the court as an additional player to find out if it is absorbed in the pareto-efficient set of the existing players or not. A court which is absorbed by other veto players should not in theory veto new legislation. It is argued in this article that courts are conditional veto players. Their veto is dependent on three variables: the ideological composition of the court; the pattern of government control; and the legislative procedures. To empirically support the analysis, data from the United States, France and Germany from 1974 to 2009 is used. This case selection increases variance with regard to system types and court types. The main finding is that courts are not always absorbed as veto players: during the period of analysis, absorption varies between 11 and 71 per cent in the three systems. Furthermore, the pattern of absorption is specific in each country due to government control, court majority and legislative procedure. Therefore, it can be concluded that they are conditional veto players. The findings have at least two implications. First, constitutional courts and supreme courts with judicial review rights should be systematically included in veto player analysis of political systems and not left aside. Any concept ignoring such courts may lead to invalid results, and any concept that counts such courts merely as an institutional feature may lead to distorted results that over- or under-estimate their impact. Second, the findings also have implications for the study of judicial politics. The main bulk of literature in this area is concerned with auto-limitation, the so-called ‘self-restraint’ of the government to avoid defeat at the court. This auto-limitation, however, should only occur if a court is not absorbed. However, vetoes observed when the court is absorbed might be explained by strategic behaviour among judges engaging in selective defection.

KW - veto players

KW - constitutional courts

KW - judicial politics

KW - comparative politics

KW - separation of power

UR - http://www.scopus.com/inward/record.url?scp=85011283161&partnerID=8YFLogxK

U2 - 10.1111/1475-6765.12192

DO - 10.1111/1475-6765.12192

M3 - Article

VL - 56

SP - 529

EP - 552

JO - European Journal of Political Research

JF - European Journal of Political Research

SN - 0304-4130

IS - 3

ER -