How and why do politicians choose to empower courts? Many scholars argue that rulers assign a variety of functions to courts – especially judicial review – in order to legitimize or consolidate their power. However, existing research on judicial empowerment has tended to emphasize agency only on the part of the politicians and not the judges, and it has tended to de-emphasize the formal and informal institutional framework that surrounds their decision to empower courts. Both omissions are problematic: By not taking into account the role judges play in the dynamics of judicial empowerment, scholars fail to properly understand the nature of politicians' rational calculus and, more importantly, to explain why some of these decisions lead to judicial empowerment, whilst on other occasions they fail to make a difference. In this paper, we challenge these rigid assumptions, and instead assume that judges have agency, and that institutional rules (formal and informal) matter for the purpose of understanding patterns of judicial empowerment in comparative perspective. We seek to offer a new explanation for judicial empowerment: Governments tend to empower courts only when they are linked to their ruling elites and are integrated in to a ruling patronage network. We argue that the key linkage at play here is the Chief Justice. Headed by a loyal Chief Justice, ceteris paribus, these dependable courts tend to produce decisions that are favorable to the regime. This second effect is very important in understanding judicial empowerment: The ruling patronage network tends to cultivate judicial loyalties to the ruling regime, either by coopting and empowering loyal judicial bosses, or by threatening, weakening or removing the recalcitrant ones. This relieves rulers from continuously monitoring political allegiances at the lower-court level, and simultaneously empowers the chief justices (and other officers linked to his governance network) over the rest of the judiciary. The costs of this type of 'judicial interference' are relatively low and they offer political elites a form of political insulation from domestic and international critiques. Using the Chief Justice to place internal pressure on individual judges or the institution as a whole is a more subtle and opaque form of political interference than simply impeaching certain judges, or using violence or coercion. In sum, by drawing on the findings from our field research in a selection of semi-authoritarian and authoritarian regimes in African, Latin American and post-Soviet countries, our paper sheds new light on the informal mechanisms through which rulers build and maintain compliant judicial institutions.
