Weak review, strong court : judicial institutions and influence in the US and France

This dissertation explores differences in the willingness of high court judges to use their authority of constitutional review to participate in national policymaking. Through quantitative and qualitative analysis of judicial decisions invalidating national laws over thirty years in the United States and France, I show how, contrary to conventional wisdom, judges with weaker forms of review in political systems that offer straightforward ways to displace judicial opinions show greater willingness to review and to invalidate national laws, over a broader range of policy domains, than their counterparts with strong form review in fragmented political environments that offer judges the “last word”. Drawing on institutional and strategic insights about judicial decision making, I show that judges perceive and experience the costs of exceeding the tolerance of political actors with the power to curtail their institutional autonomy and authority, and over time they learn to balance the immediate cost of losing a discrete policy battle versus the systemic cost of losing their institutional capacity to contribute to contemporary policy debates. My results show that, counterintuitively, giving judges the ‘last word’ on matters of policy may be counterproductive to the project of judicial empowerment, and the contrast in judicial styles with weak and strong review suggests that scholars must be more nuanced in evaluating judicial power, looking beyond the more confrontational and disruptive interventions of the Supreme Court as the standard model of judicial influence, to the more cooperative and consensual engagement of the French Constitutional Council.