Bending but not Breaking : Rule of Law Tensions and Regime Survival

Independent judges are thought to promote regime survival by allowing perceived violations of rules limiting arbitrary power to be challenged in a fair setting. Empirical evidence generally supports this claim. Yet by asking judges to hold leaders accountable, systems of constitutional review can create political tensions. Judicial institutions are sometimes attacked, judges sometimes impeached, and judicial orders are sometimes ignored. These processes can undermine independence in a variety of ways. We argue that if independent courts are to encourage regime stability, they must do so by managing these conflictual political contexts. Political contexts in which judges believe that overt political attacks are probable are unlikely to support an important role of judicial independence in regime maintenance; however, judges can contribute to regime stability even in contexts in which their decisions are sometimes ignored. Non-compliance with judicial orders need not be a problem for a robust political system. Indeed, to impact regime stability, judges must be willing to risk being ignored. We evaluate empirical implications of this argument in a study of democratic and autocratic regime survival. ∗Please send all correspondence to Jeffrey K. Staton. Email: jeffrey.staton@emory.edu; Phone: 404-727-6559; Post: 1555 Dickey Drive, 321 Tarbutton Hall, Department of Political Science, Emory University, Atlanta, GA, 30030. †Jeffrey K. Staton is Associate Professor of Political Science at Emory University. Christopher Reenock is Associate Professor of Political Science at Florida State University. Staffan Lindberg is Professor of Political Science at University of Gothenburg. Perceptions that political leaders have violated fundamental limits on their authority are common sources of political instability (Boix and Svolik 2013, Diamond, Linz and Lipset 1995, Linz and Stepan 1996, Linz 1978, O’Donnell and Schmitter 1986). Managing beliefs about the extent to which leaders are constrained thus represents a critical governance challenge. Scholars have long suggested that independent judiciaries might be an important piece of the solution to this challenge.1 On one account, independent judges are core parts of the institutional infrastructure that produce credible commitments to regime rules, notably promises to respect private property rights (e.g. North, Summerhill and Weingast 2000, Voigt, Gutmann and Feld 2015). A related, but distinct line of thought, is that independent courts offer a kind of “insurance policy” to political coalitions that expect to lose power (Ginsburg 2003, Finkel 2008). Fearful that new leaders might unravel a regime’s rules, outgoing leaders supply institutional arrangements that constrain themselves, as well as future governments. Whatever the mechanism, by supplying potential victims of state overreach with an effective avenue of redress, independent judges help stabilize regimes. Empirical evidence supports this claim, finding that independent judiciaries promote regime survival and prevent democratic backsliding (Gibler and Randazzo 2011, Reenock, Staton and Radean 2013). Despite this sanguine view of independent courts, additional facts are somewhat unsettling. Peak courts broadly understood to be independent of sitting governments have been central players in the collapse of democratic regimes. Notably, conflicts between the Supreme Court of Chile and Salvador Allende in 1973 and between the Supreme Court of Honduras and Manuel Zelaya in 2009 created legal grounds that coup-plotters would use to rationalize their actions (Ruhl 2010, Valenzuela 1978). In addition, courts seeking to constrain leaders are often the target of institutional attacks (Helmke 2010, Pérez-Liñán and Castagnola 2009). Indeed, in 2007, Bolivia’s Constitutional Tribunal was rendered inquorate as a consequence of politically motivated impeachments and resignations in the context of major conflict between the judiciary and President Evo Morales (Castagnola and Pérez-Liñán 2011). Scholars also recognize that judicial orders are not self-enforcing, a challenge that is particularly pressing when the target of an order is the state itself (Becker and Feeley 1973, Birkby 1966). 1By independent judiciaries, we mean judiciaries whose decisions largely reflect judges’ sincere evaluation of the records before them (Kornhauser 2002)