Institutionalizing Constitutional Democracy: A Strategic Analysis of the Role of Courts

Published in 2004. In Politics from Anarchy to Democracy, ed., I. Morris J. Oppenheimer & K.E. Soltan. Stanford University Press.

Jack Knight
Lee Epstein

Introduction

Transitions to constitutional democracies are, as scholars have long recognized, ongoing and complex processes. While the basic framework of the democratic system is established by the enactment of a formal constitution, the fine-grained institutional structure evolves over time as the product of the legal and political interactions among various political actors. In principle, constitutional courts play an important role in this evolution, primarily through their authority to resolve constitutional disputes by interpreting the constitution's basic provisions.

In this chapter we investigate the role of constitutional courts in the development of constitutional democracies over time. More specifically, we demonstrate how strategic models of judicial decision making help us to build explanations of the role of courts in this historical process. The intuition that judges act strategically is an old one, traced back to the early work of Glendon Schubert (1958) and, most especially, Walter Murphy (1964). The recent revival of interest in strategic behavior of judges is part of a broader emphasis on strategic analysis in the study of social and political institutions. It has taken many forms (game theory, spatial models, statistical analysis, historical research), but it rests on the basic proposition that judges often act strategically in pursuit of their various personal, policy, institutional, and jurisprudential goals (Epstein and Knight 1998).

We proceed as follows. First, we briefly explain the logic of a strategic approach to judicial decision making. Second, we offer two examples of how such an approach helps to explain how constitutional courts can directly affect the development of constitutional democracies. Third, we discuss the implications of these analyses and the strengths and weaknesses of the approach.

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