The author wishes to thank Deborah D. Avant, Matthew C. Ingram, Druscilla L. Scribner, and Matthew M. Taylor for their thoughtful comments on earlier drafts of this article. Research for the article was supported by a Fulbright Research Fellowship (2005). Please address correspondence to Diana Kapiszewski, Department of Political Science, University of California, Irvine, 3151 Social Science Plaza, Irvine, CA 92697-5100; e-mail: email@example.com.
Tactical Balancing: High Court Decision Making on Politically Crucial Cases
Article first published online: 25 MAY 2011
© 2011 Law and Society Association
Law & Society Review
Volume 45, Issue 2, pages 471–506, June 2011
How to Cite
Kapiszewski, D. (2011), Tactical Balancing: High Court Decision Making on Politically Crucial Cases. Law & Society Review, 45: 471–506. doi: 10.1111/j.1540-5893.2011.00437.x
- Issue published online: 25 MAY 2011
- Article first published online: 25 MAY 2011
This article advances a new account of judicial behavior: the thesis of tactical balancing. Building on existing models of judicial decision making, the thesis posits that high court justices balance a discrete set of considerations—justices' ideologies, their institutional interests, the potential consequences of their rulings, public opinion, elected leaders' preferences, and law—as they decide important cases. Variation in a high court's balancing of those considerations as it decides different cases leads it to alternate between challenging and endorsing the exercise of government power. The way in which high courts carry out this “tactical balancing” reflects their broader strategy for prioritizing the different roles they can play in a polity, and thus has significant implications for the rule of law and regime stability in developing democracies. The thesis is illustrated through a detailed analysis of the Brazilian high court's rulings on cases concerning crucial economic policies (1985–2004).