Preface

doi:10.7208/chicago/9780226703879.002.0007

Front Matter

Preface

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https://doi.org/10.7208/chicago/9780226703879.002.0007

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ix–x

Published:

February 2003

Extract

In modern democracies, the shape of judicial independence depends on the electoral market. After all, once a constitution is fixed, choices about when and how to try to control the courts are choices that sitting politicians make. Necessarily, they will tend to make the choices in ways that maximize their odds of winning reelection. “Necessarily” because an elected official who consistently flouts voter preferences will likely return to the status of aspiring politician. Subjectively, politicians may act for reasons other than self-conscious vote-maximization, but objectively they face an electoral market constraint. If voters like judicial independence, the politicians who survive electoral challenges will tend to be those who supply it; if voters prefer that their judges respond to the popular will, the politicians who survive will be those who supply that responsiveness instead.

In this book we explore when and how real-world politicians keep judges independent, and when and how they try to control them instead. As such, the book is an exercise in positive science, not normative science. We do not purport to say when and how independent courts would be a “good thing.” Yet precisely because many intellectuals do heap plaudits on independent courts, modern politicians who intervene in judicial affairs prefer to cover their tracks. Thus, even when politicians do not find it advantageous to leave judges alone, they apparently like to seem to have done so, by coercing them privately rather than publicly. Of course, some politicians actually do leave judges alone, and it is this observational equivalence between the seeming and the actual that creates the empirical problem we attack in this book.

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