Collaborative Research: Minority Protection with Partisan Judges: The Impact of Judicial Review on Distributive Legislation

University Of Wisconsin-Milwaukee, Milwaukee WI

Investigators

Abstract

This collaborative project examines the impact of judicial review on distributive choices by legislatures. More specifically, it examines the ability of a judiciary composed solely of narrowly partisan judges to protect minority interests in the legislative process. The project is expected to show that, contrary to conventional wisdom, judicial review can still work well to protect minority interests even when judges are narrowly partisan. The principal investigators' research strategy begins by assuming a "worst-case" context for judicial review. First, the investigators assume that judges seek singularly to advance the narrow interests of the respective group, or "faction," to which they belong. Secondly, the behavior of legislators and judges is considered in the context most likely to invite nakedly partisan outcomes - the purely distributive context of a constant-sum game in which resources allocated to one faction are necessarily taken away from the other factions. To study the impact of judicial review on distributive outcomes, the principal investigators develop an infinite-horizon game of judicial-legislative interaction in which a legislature distributes a given sum of revenue across legislative factions, subject to judicial review. The investigators extend the extant model of legislative bargaining by adding a judicial review stage in which a judge, who belongs to one of the factions and seeks only its interests, reviews allocations enacted by the legislature. With the baseline provided by the extant model, differences in legislative outcomes between the models can be attributed directly to the impact of judicial review on legislative behavior. The investigators expect that the model will show, even under these "worst-case" conditions, that judicial review still "works" in two important ways. First, they expect to show that distributive legislation is more equitably distributed in a system with judicial review than without it, even when judges are narrowly partisan. Secondly, they expect to show in the remaining cases - when the legislative allocation excludes some minority groups from receiving a share - that judicial review reduces the amount of the inequitable legislation that is actually implemented. The expected significance of the proposed project is threefold. First, the results of the project will have implications for the on-going international interest in constitutional design, specifically regarding the inclusion of judicial review in constitutional systems. Secondly, the project will have implications for evaluating judicial selection procedures in American states. Finally, the model is expected to generate hypotheses capable of being empirically tested in subsequent work.