Signaling Ambition: Political Constraints on Constitutional Review

This study offers a new perspective on courts' ability to define constitutional limits to policy. I argue that the institutional design of systems of separation-of-powers allows policy-makers to shape courts' jurisprudence and push constitutional boundaries. To support this claim, I develop a Bayesian formal model, which shows that policy-makers provoking confrontation with a court signal their ambition to challenge the latter's authority to censor policy. The model predicts that courts moderate the use of their constitutional veto when policy-makers provoke confrontation despite anticipating high political costs accruing from a potential judicial veto. An analysis of the German Federal Constitutional Court's review of federal laws between 1983 and 2017 indicates empirical support for the formal model's comparative statics. The German court tends to defer to policy-makers when the latter pursued policy against the interests of their own political allies and hence risked paying a high political price from provoking confrontation with the judiciary.