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.

The preliminary reference procedure under which the Court of Justice of the European Union (CJEU) responds to questions from national courts regarding the interpretation of EU law is a key mechanism in many accounts of the development of European integration and law. While the significance of the procedure has been broadly acknowledged, one aspect has been largely omitted: The opportunity for member state governments to submit their views (‘observations’) to the Court in ongoing cases. Previous research has shown that these observations matter for the Court's decisions, and thus that they are likely to have a significant impact on the course of European integration. Still, little is known about when and why member states decide to engage in the preliminary reference procedure by submitting observations. This article shows that there is significant variation, both between cases and between member states, in the number of observations filed. A theoretical argument is developed to explain this variation. Most importantly, a distinction is made between legal and political reasons for governments to get involved in the preliminary reference cases, and it is argued that both types of factors should be relevant. By matching empirical data from inter‐governmental negotiations on legislative acts in the Council of the EU with member states’ subsequent participation in the Court procedures, a research design is developed to test these arguments. It is found that the decision to submit observations can be tied both to concerns with the doctrinal development of EU law and to more immediate political preferences. The conclusion is that the legal (the CJEU) and political (the Council) arenas of the EU system are more interconnected than some of the previous literature would lead us to believe.

A long tradition in political science holds that political institutions are designed for the benefit of the politicians who create them. Prominent among explanations for the creation and maintenance of effective judiciaries is the political insurance theory, which predicts higher levels of judicial independence where there is robust political competition. In this article, I consider the implications of political insurance theory for one of the most consequential organizational decisions for courts, the provision of panels or subsets of judges for rendering decisions. Identifying the ability of panels to provide political insurance, I contend that higher levels of political competition motivate the creation of panel systems in national high courts. An empirical analysis using an original dataset on the organic statutes of 106 high courts reveals a positive relationship between political competition and the use of panel systems, while further analysis shows that this relationship is limited to democracies.

How do Chinese courts punish corruption? This paper demonstrates how China strategically leverages its court system to signal anti-corruption resolve by transferring high-level corruption cases to local courts in distant jurisdictions. Assigning cases to distant courts insulates the judiciary from local political interference through geographic recusal and prevents the formation of a focal point for elite coordination by creating uncertainty about which court will be designated. Using an original dataset of high-ranking officials convicted of corruption since the 18th Party Congress, this paper finds that: 1) during the court designation stage, the more severe the case, the more distant the court, and the specific location of the court cannot be easily inferred from previous assignment records or case profiles; and 2) at the conviction stage, given the same case severity, courts that are farther away tend to impose longer sentences. These findings suggest that despite the prevalence of local judicial capture and protectionism, the local court system can still be strategically employed as an institutional tool for punishing corruption.

The Cabinet customarily appoints Supreme Court Justices based on recommendations from the legal professional bodies in Japan. Previous studies have debated whether and to what extent the Cabinet has respected these recommendations or whether it has made political appointments based on its own preferences. This study examines all appointment cases to identify the extent to which the Cabinet followed or rejected these recommendations. It reveals that the Cabinet disregarded them in 25 out of 192 cases. Accordingly, the author argues that appointing Justices in Japan can be political and that the Cabinet has occasionally exercised its discretion to reject candidates.

Across the developed world, citizens typically file many more administrative appeals than administrative lawsuits. Yet, in contrast to the rich literature on court decisions, little is known about the determinants of administrative appeals decisions. We seek to fill this scholarly gap. An important feature of administrative review panels is that typically only some of their members have professional legal training. Drawing on original data on Japanese prefectural-level Administrative Complaint Review Boards (ACRBs), we show that ACRBs with more private attorneys rule more often against agencies. Consistent with a socialization perspective, we find preliminary evidence that ACRBs with more experienced private attorneys rule more often against agencies. We also find that, consistent with insights from both political insurance theory and the literature on technocratic appointments, more recently elected prefectural governors are more likely to appoint more private attorneys to ACRBs and that governors’ ideological orientations have little effect on their choices.

Current scholarship conceives of courts as victims or targets of populist authoritarians. But can empowered courts facilitate democratic backsliding? This article develops a new framework for understanding the approaches judiciaries take when tackling political corruption and argues that when judges attempt to replace ‘corrupted’ elected branches as the primary representative institution, their actions and rhetoric can enable populist authoritarians to seize power, raising the risk of democratic backsliding. I combine jurisprudence, newspaper archives and interviews to trace the process through which Pakistan’s Supreme Court, committed to playing a representation-replacement role, enabled the military-backed populist Pakistan Tehreek-e-Insaaf to come to power in 2018, and use its powers to reverse Pakistan’s democratic transition. I also probe the political impact of anti-corruption jurisprudence in more established democracies. In doing so, I introduce a typology for understanding approaches courts take when combating corruption, and highlight the threat to democracy that can emerge from judiciaries.

In this research, we update the measure of case salience for state supreme courts originally developed by Vining and Wilhelm (2011). The original measure was compatible with the Brace-Hall State Supreme Court Data Project (SSCDP) and covered 1995 through 1998. Our updated measure is now compatible with the Hall–Windett Data on State Supreme Court Outcomes (2013), a more contemporary source for state supreme court information. Here we discuss the new dataset of salient cases from 1995 to 2019 and provide descriptive statistics.

Federal law clerks play a vital role in the development and implementation of the law. Yet, women remain underrepresented in these positions. We suggest that one reason for this underrepresentation may be differences in hiring practices among judges in the federal judiciary. Specifically, we hypothesize that male judges and conservative judges may be less likely to hire female law clerks than female judges and liberal judges for two reasons. First, gendered attitudes held by judges may make some judges prone to hire women and/or others more resistant to these hires. Second, due to ideological asymmetries between the law clerk pool and judges in the federal judiciary, conservative judges and male judges may be less likely to hire women law clerks. Using data on clerks hired in the federal judiciary between 1995 and 2005, we find support for both mechanisms.1

We develop a new approach to understanding which legal questions the Supreme Court chooses to address. We show that the Supreme Court is more likely to resolve ideologically polarizing legal questions. This result is based on a new technique for estimating the ideology of a doctrine, which we implement using a dataset of intercircuit splits. We use this technique to identify legal issues that are ideologically polarizing and show they are more likely to be addressed by the Supreme Court than less polarizing issues. Our results demonstrate how the Supreme Court uses certiorari to advance its ideological policymaking goals.

Unethical behavior among US judges, including sexual misconduct and other forms of discriminatory behavior, is becoming increasingly publicized. These controversies are particularly concerning given the important role judges play in shaping policy pertaining to individual rights. We argue that types of misconduct serve as a signal to the public about potential threats judges may pose to people, particularly groups of people who are marginalized. We use a survey experiment that introduces a judge who has engaged in misconduct to measure if the type of misconduct will influence attitudes on whether the judge poses a threat to the rights of women, racial minorities, and ethnic minorities. Interestingly, we find that judges accused of discriminatory misconduct toward one group are viewed as a threat to rights across the board and are seen as less able to rule fairly on matters pertaining to marginalized people more generally.

A growing theoretical literature identifies how the process of constitutional review shapes judicial decision-making, legislative behavior, and even the constitutionality of legislation and executive actions. However, the empirical interrogation of these theoretical arguments is limited by the absence of a common protocol for coding constitutional review decisions across courts and time. We introduce such a coding protocol and database (CompLaw) of rulings by 42 constitutional courts. To illustrate the value of CompLaw, we examine a heretofore untested empirical implication about how review timing relates to rulings of unconstitutionality (Ward and Gabel 2019). First, we conduct a nuanced analysis of rulings by the French Constitutional Council over a 13-year period. We then examine the relationship between review timing and strike rates with a set of national constitutional courts in one year. Our data analysis highlights the benefits and flexibility of the CompLaw coding protocol for scholars of judicial review.

While informal institutions significantly affect the functioning of courts, they also change the powers, position, and influence of individual actors in judicial systems. This Article analyzes how the presence of informal judicial institutions and practices reshapes the influence and importance of roles individual actors play in the functioning of the judiciary. The aim of this Article is three-fold. First, it maps the actors of informal judicial institutions and practices. Second, it stresses the importance of looking at actors who are not formally involved in particular judicial processes and recognized as decision-makers but have the ability to influence the judiciary informally. Third, it shows why it is necessary to keep in mind that also collective bodies can take part in informal judicial institutions and practices.

Though widely used in studies of judicial politics, American Bar Association (ABA) ratings have a partisan bias. As a result, when researchers include ABA ratings and ideology in a model together, the results may be biased toward non-findings with respect to the effect of ideology, qualifications, or both. This study leverages new data on the ABA rating process to create a valid and reliable new measure for the qualifications of nominees to the US Courts of Appeals. In an empirical example, I test the new measure against alternative specifications to demonstrate its potential. The empirical example also presents a new data set on circuit court confirmation hearing speech. The findings contrast with well-established conclusions from previous studies.

Many studies of policy diffusion focus on what factors affect a policy’s adoption. Few studies specifically test the mechanism and two of the most common explanations – learning and emulation – have not been tested outside of legislatures. While judicial scholars have applied policy diffusion to several types of laws, we know little about the motivation behind why policies spread from court to court. One unexplored area is the relationship between courts. This short article analyzes the two mechanisms most likely to affect peer institutions: learning and emulation. Using network analysis methods on an original dataset of state supreme court citations from 1960 to 2010, I provide evidence that courts are learning from and not emulating each other, but the mechanism is policy-specific.

We investigate the American public's attitudes over an integral component of judicial behavior: the legal principles judges employ when making decisions. Our theoretical perspective argues that political preferences shape individuals’ attitudes over how judges apply legal principles, mirroring ideological divisions expressed by political elites and judges. Using an original battery of questions, we find high support across all Americans for the use of certain, well-established legal principles, but stark differences in how liberals and conservatives evaluate the use of more controversial principles. In a survey experiment, we find that agreement (disagreement) between an individual's attitudes over the use of legal principles and the reasoning contained in a Supreme Court opinion is associated with increased (decreased) support for the Court decision.

Courts prosecuting corruption serve a critical horizontal accountability function, but they can also play a role in moments of vertical accountability when voters can sanction corrupt candidates. This article documents the strategic use of corruption lawsuits, demonstrating the presence of an electoral cycle in filing new corruption accusations against politicians. Using an original dataset of daily corruption complaints filed in federal courts against members of Argentina's main political coalitions between 2013 and 2021, we document increased corruption accusations against and by politicians in the periods immediately preceding an election. A second dataset of daily media coverage of corruption accusations in two leading newspapers suggests that corruption is more salient before elections, offering politicians a temporal focal point to prepare and launch especially impactful lawsuits. Our findings shed new light on using courts for accountability and debates about the so-called ‘lawfare’ in Latin America.

Law clerks hold immense responsibilities and exert influence over the judges they work with. However, women remain underrepresented in these positions. We argue that one reason for this underrepresentation is that – like potential political candidates – female law students may have lower levels of ambition compared to men. Using a survey of student editors at thirty-three top law reviews, we find that there is a gender gap in ambition for clerkships with the Supreme Court and Federal Courts of Appeal. Examining potential sources of this difference, we find that while women view themselves to be just as qualified for these positions as men, men are more willing to apply with lower feelings of qualification. Likewise, while women and men report similar levels of encouragement, more encouragement is required before women express ambition to hold these posts. The findings presented here have implications for research on judicial politics, political ambition, and women’s representation.

Debates over prison privatization neglect to consider differences in legal access across private and public prisons. I argue that private prisons experience lower filing rates than public prisons, and that cases brought against publicly traded private prison companies are less likely to be dismissed and more likely to succeed than similar cases against public prisons. I find evidence consistent with these claims, a result that is not driven by other explanations of judicial decision-making. This paper has implications for skepticism of private interests in public policymaking, and encourages investigation of access to justice for inmates in public and private custody.

While longstanding theories of political behavior argue that voters do not possess sufficient political knowledge to hold their elected representatives accountable, recent revisionist studies challenge this view, arguing that voters can both follow how their representatives vote and use that information intelligently. We apply the revisionist account to the study of Supreme Court nominations in the modern era. Using survey data on the nominations of Clarence Thomas, Sonia Sotomayor, and Elena Kagan, we ask whether voters can and do hold senators accountable for their votes on Supreme Court nominees. While our results for Thomas are ambiguous, we find strong evidence for accountability in the cases of Sotomayor and Kagan. In particular, we show that voters on average can correctly recall the votes of their senators on these nominees, and that correct recall is correlated with higher levels of education and political knowledge. We then show that voters are more likely to both approve of and vote to re-elect their senator if he or she casts a vote on Sotomayor and Kagan that is in line with voters’ preferences. Finally, we show this effect is quite sizable, as it rivals the effect of agreement on other high-profile roll call votes. These results have important implications for both the broader study of representation and for understanding the current politics of Supreme Court nominations.