An Agent-Based Model of Judicial Power

Abstract

That a court possesses the formal power of judicial review is no guarantee that its decisions will be obeyed. Courts are occasionally defied, and they can also be attacked in retaliation for decisions that frustrate the goals of political elites. Using a method of computer simulation called agent-based modelling, this article explores how new constitutional or supreme courts can act strategically to build their power while mitigating the risk of retaliation by the political branches. The simulations suggest that a court that avoids challenging the preferred policies of the political branches in high salience disputes will, ultimately, tend to exert more influence on constitutional law than a court that moves to establish its power early on in landmark cases. These findings vindicate the intuition that the growth of judicial power will normally depend on “baby steps”, i.e., relatively restrained and incremental (as opposed to sudden and bold) assertions of constitutional supremacy.

Keywords: agent-based model, constitutional courts, judicial power, judicial review