Legislative-Judicial Relations: A Game-Theoretic Approach to Constitutional Review

Abstract

from 1983 to1995. ourts with the power to exercise constitutional review-as constitutional courts or in a decentralized system of judicial reviewconstitute central institutions of governance in most Western-style democracies. I present a simple game-theoretic model that provides a unified account of the multi-faceted interactions between such courts and the legislatures they are, at least in part, intended to control. The model addresses legislative anticipation of judicial review, legislative reactions to judicial rulings, and investigates the implications for judicial behavior. It demonstrates that the political environment in which a court must act is crucially important to the manner in which it will use its powers. As a result, the analysis provides important insights into the extent and the limits of judicial influence, thereby addressing questions that have been a recurring topic of debate among judicial scholars in the last decade (e.g., Holland 1991; Stone 1992; Tate and Vallinder 1995). In addition, the model lends insight into the current debate concerning the extent of strategic behavior by justices, demonstrating under which circumstances justices are likely to be constrained by strategic considerations and when this will not be the case (e.g., Carrubba 2000; Ferejohn and Weingast 1992; Rogers 2001; Segal 1997). The article is organized as follows. The next section introduces the substantive feature of legislative-judicial relations that is central to the analysis. The third section describes the model. In the fourth section, I present the equilibria of the game and interpret the results. The fifth section provides an empirical test of some of the model's conclusions using data on the decisions of the German Constitutional Court. The final section concludes.