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Matthew C. Stephenson, Court of Public Opinion: Government Accountability and Judicial Independence, 20 J.L. Econ. & Org. 379 (2004).

Abstract: Using a simple model of policy making in a system characterized by formal separation of powers, judicial dependence on government support, asymmetric information between voters and the government, and political accountability of the policy branch, I show conditions under which rational voters force the government to cede power over legislative decisions to the courts. Specifically, the public uses its ability to hold the elected branches of government accountable to enforce a judicial veto when judicial opposition to legislation provides more reliable information to voters than government support for legislation does. The model thus provides a theoretical justification for, and suggests important limits to, the common assumption that disregard for judicial decisions is politically costly for elected politicians. The model also demonstrates how other observed patterns in judicial politics—including judicial rubber-stamping of government decisions and government “passing the buck” to courts—can arise as equilibria in the same simple framework.