THE ROLE OF CONSTITUTIONAL COURTS IN THE ESTABLISHMENT AND
MAINTENANCE OF DEMOCRATIC SYSTEMS OF GOVERNMENT
Published in 2001. Law & Society Review 45 (April): 362-377.
(Revised version of a paper presented at the 2000 annual meeting
of the American Political Science Association.)
Lee Epstein
Jack Knight
Olga Shvetsova
What role do courts play in the establishment and maintenance
of constitutional democracies? To address this question, we
elaborate a model that draws on existing substantive literature
and on theories that assume strategic behavior on the part of
judges, executives, and legislatures. This model, in turn, leads
to several behavioral predictions about the interactions among
the relevant political actors. While those predictions could be
assessed in many distinct contexts, we focus on Russia. In
particular, we provide a demonstration of how the model helps
make sense of the behavior of the Constitutional Court
(Konstitucjonnyj sud) in light of the difficult political
situation it confronted. We conclude with some thoughts on the
broader implications of our theory for the study of courts
throughout Eastern Europe and how it may well illuminate
constitutional politics in other parts of the world. We attempt
to provide such evidence by turning to the docket books of Chief
Justice Waite (1874-1888), and making the following argument: If
a norm of consensus induced unanimity on Courts of by-gone eras,
then the norm may have manifested itself through public unanimity
in the face of private conference disagreements. Our
investigation, which provides systematic support for this
argument and thus for the existence of a norm of consensus,
raises important questions about publicly-unified decision-making
bodies, be they courts or other political organizations.
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