35 Pages Posted: 1 Aug 2016
Date Written: July 29, 2016
Scholars of the politics of constitutional review have increasingly pointed to public awareness as a critical condition for courts to effectively enforce their decisions. This research, however, has focused on judiciaries with public support. I consider the consequences of public awareness for the behavior of courts that lack public support. I contend that such courts are constrained by an aware public because it magnifies the incentive for elected officials to engage in political attacks against the judiciary. To develop my argument, I formalize an interaction between a government and an unpopular court engaging in constitutional review. The model yields three testable empirical implications for the consequence of public awareness for the behavior of a court lacking public support. An empirical analysis of infringement cases at the European Court of Justice (ECJ) from 1960 to 1999 supports the model's predictions, suggesting that public awareness constrains courts that public support. A politically aware public is often viewed as a critical component of modern liberal democracies.
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