When and why do courts constrain the executive? Comparative research shows that courts can limit executive aggrandizement and foster democratic resilience. Yet we know less about why some judiciaries are more resilient to executive attacks than others. I theorize that judicial selection institutions, or the formal and informal rules for selecting judges, shape when courts rule against the executive. When these institutions disperse power over selecting judges (e.g., through a super-majority requirement), they prevent court capture by the executive—for example, through an informal institution of appointing judges two-by-two that I call the Noah’s Ark strategy. I then theorize that judicial allies, or actors outside the judiciary who increase the costs of curbing the courts, explain why courts have power to constrain executive aggrandizement. I demonstrate this theory in Israel by analyzing quantitative data on over 16,000 panel decisions by Israel’s Supreme Court and 30 qualitative interviews with high-ranking judges, lawyers, and politicians. These findings illuminate the institutional and sociopolitical determinants of judicial independence and democratic resilience.
Andrew O’Donohue (Sun,) studied this question.