The finding that constitutional courts in Europe play a significant role in the process of policy-making is beyond dispute among legal and political scientists. Yet, despite the assertion that politics has been judicialized, we know little about the mechanisms that drive judicial decisions. Do European judges exhibit political preferences as their US counterparts do? If so, the appointment process takes centre stage because if judges follow their political preferences these matter to those who select them. Moreover, once being in office, judges are exposed to a political environment in which they seek implementation of their decisions. Strategic considerations may be made by judges who know that a favourable environment can be brought to bear against legislating majorities that would otherwise prefer to evade a judicial ruling.
This article addresses the relative explanatory power of both, the attitudinal and the strategic account for the decision making by the Italian Constitutional Court between 1990 and 2012, a period in which the court was drawn into current political conflicts with alternating legislating majorities. Based on random sample of 1,000 decisions of concrete and abstract constitutional review, it studies the impact of the political alignment between the pivotal judge and the legislating majority as well as determinants of a favourable political environment on the likelihood with which the court declares a legislative statute unconstitutional. Our empirical analysis regarding the strategic account supports the idea that judges act strategically: the court behaves aggressively vis-à-vis the legislature as it is backed by a favourable political environment.
