Public Support for the Rule of Law: Courts as Fire Alarms

We propose a chapter from our book Public Support for the Rule of Law (Cambridge University Press). We contend that courts---particularly independent courts---have the power to activate support for the rule of law in a manner that leads citizens to withhold their support for a constitutionally offensive government action. When, however, the judicial branch does not attempt to constrain executive power, whether as a result of sincere agreement, political pressure or co-optation, citizens are left without a clear indication of the constitutional propriety of the government's action or may even see the court as having legitimized the policy. We expect that the efficacy of the public's support for the rule of law as a constraint on the executive will depend in part on the information conveyed by court decisions about suspect government policies, as well as the extent to which a court is independent and therefore credible enough to mobilize public opposition to the policy. We rely on an experiment, fielded on a nationally-representative sample in four countries, in which respondents read about a constitutionally questionable national lockdown policy pursued by the national executive and challenged in the country's high court. We expect that executives benefit from a constitutional court that approves the policy but may suffer a loss of support for circumventing a judicial edict that strikes the controversial policy down. Further, we anticipate that those who espouse a strong commitment to the rule of law will be less swayed by judicial approval but more apt to withhold their support for a government that circumvents the high court. In contexts where the independence of the judiciary has been compromised, however, we expect the signals sent by a court to have little to no effect, as citizens simply dismiss them as a reflection of court's political bias rather than impartial application of the law. The results, support our hypotheses. In the United States and Germany, both consolidated democracies, an executive action that circumvents judicial action leads to lower support than an action that a court has deemed constitutional. This withdrawal of support for a circumvented court is conditioned by individuals' level of support for the rule of law. However, we do not observe the strong persuasive authority of courts in Poland and Hungary. Citizens' evaluations of the executive's lockdown order are no different if the government complies or defies the high court, even among those with the highest level of support for the rule of law in these two backsliding democracies. We conclude the chapter by returning to the question of whether, and if so under what circumstances, institutions can facilitate the translation of support for the rule of law into an effective constraint on the state. As our results in this chapter indicate, neither institutions nor attitudes alone appear sufficient to limit executive power, but rather it is through the right combination of the two that we find evidence of their constraining effect.