Conceptualising Political Interference with Courts

A central question in judicial politics is why the weakest branch of government often accumulates so much sway in the political system. One popular answer is the insurance theory, which holds that judicial independence and judicial authority can serve the interests of major parties in government and opposition. The main benefit of independent courts to the parties is that they reduce the costs of losing future elections. Existing studies have largely focussed on electoral competition as the main independent variable and on the benefits judicial independence provides to major parties. Increasingly in Europe and beyond, however, governments do interfere with judiciaries, often rendering them toothless especially in politically charged cases. This can be explained by focussing more on the costs that independent judiciaries impose on political actors. Sometimes, the price of insurance is too high to be worth it. In this theoretical paper, I offer a way to conceptualize political interference with courts. In particular, I look at how the politicization of courts and political backlash should be understood in the context of insurance theory. I develop a theoretical argument to show that these two modes are affecting the insurance function in very different ways, even though they are triggered by similar needs of governments. Additionally, I provide a typology of political interference and relate it to a case study of Poland. I argue that by politicizing courts, governments ‘upgrade’ their insurance, while through court curbing (such as jurisdiction stripping) they weaken or remove their insurance.