Institutional Viability and High Courts: A Comparative Analysis of Post-Communist States

The development of judicial viability involves a process by which constitutional courts attain institutional stability and value as an end in itself. Institutional stability denotes the courts' capacity to withstand environmental shocks, and value involves entities acquiring a distinctive mission and identity in the newly democratized governmental system. More precisely, we argue that constitutional courts attain functional (substantive) viability when they attain high levels of three features: differentiation (unique character and mission); autonomy (functional insularity); and durability (institutional resilience and adaptability). The emergence of judicial viability, therefore, lies in the interplay of these features over time. Using factor analytic methods, we derive a single score that accurately measures these institutional features in post-communist states.