Under what conditions do courts constrain the executive? Comparative research finds that the judiciary is often a key bulwark against executive aggrandizement. Yet we know less about why judicial constraints on the executive are more resilient in some cases than others. I develop a theory to explain judicial behavior and judicial power over the executive. I theorize that judicial selection institutions, or the formal and informal procedures for selecting judges, shape whether judicial behavior checks or enables the executive. When institutions for selecting judges disperse power (e.g., through a supermajority requirement), they lead to judicial behavior that persistently limits the executive. In particular, an informal institution of appointing pairs of ideologically distinct judges—which I call the Noah’s Ark strategy—preserves the judiciary’s willingness to rule against the executive. Next, I 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 between 2009 and 2023 by analyzing quantitative data on over 16,000 panel decisions by Israel’s Supreme Court and qualitative interviews with high-ranking judges, lawyers, and politicians. Finally, I test the theory cross-nationally using an original dataset of judicial selection institutions in 139 countries. These findings illuminate the institutional and sociopolitical determinants of judicial independence, judicial power, and democratic resilience.
Andrew O’Donohue (Wed,) studied this question.