Abstract
Different theories have been developed, mainly in the context of the United States, to explain judicial decision-making. In this respect, there is an important ongoing debate over whether judges are guided by the law or by personal ideology. The analysis of the decision-making in the Polish Constitutional Tribunal seems to support the existence of some party alignment. It is to say that judicial behavior is influenced by the ideology, either because judges’ preferences coincide with the interests of a specific party or because the judges are incentivized to show their loyalty to a party. Party alignment exists but subject to institutional influences. These results are in line with previous findings for other constitutional courts in Europe.
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Notes
On Canada, see Tate and Sittiwong (1989), Alarie and Green (2008), Green and Alarie (2009), and Songer et al. (2011). On Germany, see Schneider (2005) and Vanberg (2005). On Italy, see Breton and Fraschini (2003), Fiorino et al. (2007, 2015), Padovano (2009), Pellegrina and Garoupa (2013), and Garoupa and Grembi (2015). On Portugal, see Amaral Garcia et al. (2009). On France, see Franck (2009, 2010). On Spain, see Garoupa et al. (2013). On Israel, see Shachar et al. (1997) and Eisenberg et al. (2012). On Australia, see Smyth and Narayan (2004).
It is important to stress that in 1992 the interim Little Constitution was promulgated in Poland. This Constitution did not repeal all of the rules of the Stalinist Constitution of 1952. It aimed, however, at reducing institutional uncertainty through amending and facilitating the main functional and organizational features of the state. The most important was to bring order and regularity to the confused relations between the parliament, the government and the President. Among the hottest issues, the interim Constitution was supposed to remove dual authority over foreign affairs and security matters as well as clarify the process for appointing the Prime Minister (see, for instance, Elster 1993).
For instance, the constitutional drafters introduced an innovative fiscal rule limiting the country’s debt ratio to 60 % of GDP.
Although the Referendum Act of 1995 required at least 50 % turnout for a referendum to have a biding effect, the Constitutional Act of 1992 instructed that the new constitution should be adopted in a referendum regardless of the turnout rate. The common belief in the early 1990s was that the turnout in the constitutional referendum would never achieve 50 %. Therefore, the establishment of a 50 % turnout threshold put the constitutional project at high risk (see, for instance, Supreme Court Resolution from July 15, 1997).
Although according to the law, the unconstitutional statutes or articles cease to have any effective binding legal status, it is important to note that on many occasions the legislative bodies are obliged to further enforce specific TK judgments. It is particularly the case when the TK derogates the law and creates a legal vacuum. In years 2005–2008, approximately 70 % (112/160) of judgments posed some enforcement obligation on the legislative bodies. However, 47 % (52/112) of those judgments were not enforced by the relevant institutions (see Radzewicz 2010).
The Presidium of the Sejm comprises the President and Deputy President of the Sejm. The main competence of the Presidium of the Sejm includes the setting of the Sejm’s work agenda, organizing cooperation between the committees of the Sejm and coordinating their activities.
Removal from the office of the judge can be only a consequence of the disciplinary punishment by the TK. A judge may be subject to the disciplinary punishment for an infringement of provisions of the law, for act which is inconsistent with the dignity of his office or for unethical conduct which might undermine judge’s confidence (see articles 8-10 of the Constitutional Tribunal Act of 1997).
Retention of a judicial status entitles the retiring judge to a “pension” irrespective of his/her age.
The rapporteur casts an important role in the adjudicating process since s/he is in charge of drafting the judgment together with its reasoning (see § 42 of the Constitutional Court Statute of 2006).
The TK adjudicates in three types of benches, i.e. in a full bench (at least 9 judges), five-judges bench and three-judges bench. The size of the adjudicating bench depends on the nature of the case and its complexity (see article 25 of the Constitutional Court Act of 1997).
In 2012, 33 % of the Court decisions included at least one dissenting opinion. This is, however, the record year. In previous years, the proportion of judgments with dissenting opinions is variable. It goes from 3 % in 2006 to 29 % in 2011 (see Trybunał 2013).
An abstract review of law is not the only judicial review performed in the TK. Similarly to the U.S model of judicial review, any court in Poland can initiate concrete review. This occurs in the situation where the court has doubts about the constitutionality of legal provision which serves as a basis for the judgment (see articles 31-44 of the Constitutional Court Act of 1997).
The political dominance is not the only weakness of the appointment process to the TK. There are several other problems. First, the short period of time given by the law to appoint the judges to the TK (30 days) reduces the transparency of the process and practically eliminates the possibility for public debate on the candidates. Second, the information about the candidates’ merits given by the nominating bodies is very limited. It is often the case that the press investigation reveals some disgraceful facts about the candidates to the TK. Thirdly, the judicial and academic circles are not invited to recommend the candidates to the TK or to examine the merits of the candidates. Fourth, there is no fixed procedure for electing the judges. Judges are appointed individually but on several occasions they were elected en banc (voting on all candidates together) (see Bojarski 2010).
In the current parliamentary setting there are three other political parties present in the Sejm, i.e. Polish People’s Party (Polskie Stronnictwo Ludowe, hereinafter PSL), Palikot’s Movement (Twój Ruch, hereinafter TR) and United Poland (Solidarna Polska, hereinafter SP). PSL is currently the coalition partner of the PO (centrist party). In years 1993–1997 and 2001–2003, however, this party was the coalition junior partner of the left-wing governments. TP and SP, in turn, are relatively new parties on the Polish political scene.
Abstract judicial reviews of statutes are classified by the TK under two letter codes, i.e. K (ex post abstract review) and Kp (ex ante abstract review). Due to the fact that the availability of the documentation on the TK website is limited, it was impossible to identify petitioners in six cases, i.e. K 12/02, K 19/02, K 34/03, K 24/04, K 38/04 and K 17/12. Consequently, those cases are not part of the dataset.
It is important to note that the decisions in the adjudicating benches are taken by a simple majority. Judges vote secretly and if they do not agree with the final judgment, they are allowed to present the dissenting opinions. In the view of this paper, the absence of the dissenting opinion indicates that a judge, even if initially s/he voted differently than the majority, eventually s/he agrees with the decision of the adjudicating bench.
References
Alarie, B., & Green, A. J. (2008). Should they all just get along? Judicial ideology, collegiality, and appointments to the Supreme Court of Canada. University of New Brunswick Law Journal, 53, 73–91.
Arlota, C., & Garoupa, N. (2014). Addressing federal conflicts: An empirical analysis of the Brazilian Supreme Court, 1988–2010. Review of Law and Economics, 10, 137–168.
Bojarski, L. (2010). Wybory sedziow do Trybunalu Konstytucyjnego. Instytut Prawa i Spoleczenstwa. http://www.inpris.pl/fileadmin/user_upload/documents/raport_wybory_sedziow_TK.pdf.
Breton, Albert., & Fraschini, Angela. (2003). The independence of the Italian constitutional court. Constitutional Political Economy, 14, 319–333.
Cameron, C. M., & Lewis, A. K. (2010). Modeling collegial courts III: Adjudication equilibria. SSRN working-paper. http://ssrn.com/abstract=1400838
Carroll, R., & Tiede, L. (2011). Judicial behavior on the Chilean constitutional court. Journal of Empirical Legal Studies, 8, 856–877.
Chávez, R. B. (2004). The rule of law in nascent democracies: Judicial politics in Argentina. Palo Alto: Stanford University Press.
Edelman, P. H., Klein, D., & Lindquist, S. A. (2012). Consensus, disorder, and ideology on the Supreme Court. Journal of Empirical Legal Studies, 9, 129–148.
Edwards, H. T., & Livermore, M. A. (2009). Pitfalls of empirical studies that attempt to understand the factors affecting appellate decisionmaking. Duke Law Journal, 58, 1895–1989.
Eisenberg, T., Fisher, T., & Rosen-Zvi, I. (2012). Case selection and dissent in courts of last resort: An empirical study of the Israel Supreme Court. In Y.-C. Chang (Ed.), Empirical studies of judicial systems. Academia Sinica: Taipei.
Elster, J. (1993). Constitution-making in Eastern Europe: Rebuilding the boat in the open sea. Public administration, Vol. 71, Spring/Summer.
Epstein, L., & Knight, J. (1998). The choices justices make. Washington, DC: Congressional Quarterly Inc.
Epstein, L., Landes, W., & Posner, R. A. (2011). Why (and when) judges dissent: A theoretical and empirical analysis. Journal of Legal Analysis, 3, 101–137.
Escresa, L., & Nuno, G. (2012). Judicial politics in unstable democracies: The case of the Philippine Supreme Court, 1986–2010. Asian Journal of Law and Economics, 3, (article 2).
Fiorino, N., Gavoille, N., & Padovano, F. (2015). Rewarding judicial independence: Evidence from the Italian constitutional court. International Review of Law and Economics, 43, 56–66.
Fiorino, N., Padovano, F., & Sgarra, G. (2007). The determinants of judicial independence: Evidence from the Italian constitutional court (1956–2002). Journal of Institutional and Theoretical Economics, 163, 683–705.
Franck, R. (2009). Judicial independence under a divided polity: A study of the rulings of the French constitutional court, 1959–2006. Journal of Law, Economics and Organization, 25, 262–284.
Franck, R. (2010). Judicial independence and the validity of controverted elections. American Law and Economics Review, 12, 394–422.
Garcia, A., Sofia, N. G., & Grembi, V. (2009). Judicial independence and party politics in the Kelsenian constitutional courts: the case of Portugal. Journal of Empirical Legal Studies, 6, 383–404.
Garlicki, L. L. (2002). The experience of the Polish constitutional court. In Wojciech. Sadurski (Ed.), Constitutional Justice, East and West: Democratic legitimacy and constitutional courts in post-communist Europe in a comparative perspective. The Hague: Kluwer Law International.
Garoupa, N., Gili, M., & Gómez-Pomar, F. (2011a). An empirical analysis of administrative review by the Spanish Supreme Court. Journal of Empirical Legal Studies, 9, 795–826.
Garoupa, N., & Ginsburg, T. (2010). Reputation, information, and the organization of the judiciary. Journal of Comparative Law, 4, 226–254.
Garoupa, N., Gómez-Pomar, F., & Grembi, V. (2013). Judging politically: An empirical analysis of constitutional review voting in the Spanish constitutional court. Journal of Law, Economics and Organization, 29, 513–534.
Garoupa, N., & Grembi, V. (2015). Judicial review and political partisanship: Consensual vs. majoritarian democracy. International Review of Law and Economics, 43, 32–45.
Garoupa, N., Grembi, V., & Lin, S. (2011b). Explaining constitutional review in new democracies: The case of Taiwan. Pacific Rim Law and Policy Journal, 20, 1–40.
Ginsburg, T. (2003). Judicial review in new democracies: Constitutional courts in Asian cases. Cambridge: Cambridge University Press.
Ginsburg, T., Elkins, Z., & Blout, J. (2009). Does the process of constitution-making matter? Annual Review of Law and Social Science, 5, 201–223.
Green, A. J., & Alarie, B. (2009). Policy preference change and appointments to the Supreme Court of Canada. Osgoode Hall Law Journal, 47, 1–46.
Helmke, G. (2004). Courts under constraints: Judges, Generals, and Presidents in Argentina. Cambridge: Cambridge University Press.
Hilbink, L. (2007). Judges beyond politics in democracy and dictatorship: Lessons from Chile. Cambridge: Cambridge University Press.
Iaryczower, M., Spiller, P. T., & Tommasi, M. (2002). Judicial independence in unstable environments, Argentina 1935–1998. American Journal of Political Science, 46, 699–716.
Iaryczower, M., Spiller, P. T., & Tommasi, M. (2006). Judicial lobbying: The politics of labor law constitutional interpretation. American Political Science Review, 100, 1–13.
Kapiszewski, D., & Taylor, M. M. (2008). Doing courts justice? Studying judicial politics in Latin America. Perspectives in Politics, 64, 741–767.
Kornhauser, L. A. (1992). Modeling collegial courts I: Path-dependence. International Review of Law and Economics, 12, 169–185.
Kornhauser, L. A. (2003). Modeling collegial courts II: Legal doctrine. Journal of Law, Economics and Organization, 8, 441–470.
Landes, W., & Posner, R. (1975). The independent judiciary in an interest-group perspective. Journal of Law and Economics, 18, 875–901.
Merryman, J. H., & Pérez-Perdomo, R. (2007). The civil law tradition (3rd Ed.). Palo Alto, CA: Stanford University Press.
Padovano, F. (2009). The time-varying independence of Italian Peak Judicial Institutions. Constitutional Political Economy, 20, 230–250.
Pellegrina, L. D., & Garoupa, N. (2013). Choosing between the government and the regions: An empirical analysis of the Italian constitutional court decisions. European Journal of Political Research, 52, 431–480.
Posner, R. A. (1993). What do judges and justices maximize? (The same thing everybody else). Supreme Court Economic Review, 3, 1–41.
Posner, R. A. (2005). Judicial behavior and performance: An economic approach. Florida State University Law Review, 32, 1259–1279.
Posner, R. A. (2010). Some realism about judges: A reply to Edwards and Livermore. Duke Law Journal, 59, 1177–1186.
Posner, R. A. (2011). Realism about judges. Northwestern University Law Review, 105, 577–586.
Radzewicz, P. (2010). Wykonywanie orzeczen Trybunalu Konstytucyjnego przez prawodawce. Instytut Prawa i Spoleczenstwa. http://www.inpris.pl/fileadmin/user_upload/documents/raport_wykonywanie_orzeczen_TK.pdf.
Ramseyer, J. M., & Rasmusen, E. B. (2003). Measuring judicial independence: The political economy of judging in Japan. Chicago: University of Chicago Press.
Ramseyer, J. M., & Rasmusen, E. B. (2006). The case for managed judges: Learning from Japan after the political upheaval of 1993. University of Pennsylvania Law Review, 154, 1879–1930.
Robertson, D. (1998). Judicial discretion in the house of lords. Oxford: Clarendon Press.
Robertson, D. (2010). The judge as political theorist. Princeton: Princeton University Press.
Sadurski, W. (2002). Consitutional justice, east and west: Introduction. In W. Sadurski (Ed.), Constitutional justice, east and west: Democratic legitimacy and constitutional courts in post-communist Europe in a comparative perspective. The Hague: Kluwer Law International.
Salzberger, E. (1993). A positive analysis of the doctrine of separation of powers, or: Why do we have an independent judiciary? International Review of Law and Economics, 13, 349–379.
Salzberger, E., & Fenn, P. (1999). Judicial independence: Some evidence from the English court of appeal. Journal of Law and Economics, 42, 831–847.
Schneider, M. R. (2005). Judicial career incentives and court performance: An empirical study of the German Labour Courts of Appeal. European Journal of Law and Economics, 20, 127–144.
Segal, J. A., & Spaeth, H. J. (2002). The supreme court and the attitudinal model revisited. Cambridge: Cambridge University Press.
Shachar, Y., Gross, M., & Harris, R. (1997). Anatomy of discourse and dissent in the Supreme Court—Quantitative analyses. Tel Aviv UL Rev, 20, 749–795.
Smyth, R., & Narayan, P. K. (2004). Hail to the chief! Leadership and structural change in the level of consensus on the High Court of Australia. Journal of Empirical Legal Studies, 1, 399–427.
Songer, D. R., Szmer, J., & Johnson, S. W. (2011). Explaining dissent on the Supreme Court of Canada. Canadian Journal of Political Science, 44, 389–409.
Spiller, P. T., & Gely, R. (2007). Strategic judicial decision making. NBER working paper 13321.
Stawecki, T., Staśkiewicz, W., & Winczorek, J. (2008). Between polycentrism and fragmentation the impact of constitutional Tribunal Rulings on the Polish legal order. Warsaw: Ernst & Young Polska.
Tate, C. N., & Sittiwong, P. (1989). Decision making in the Canadian Supreme Court: Extending the personal attributes model across nations. Journal of Politics, 51, 900–916.
Trybunał, K. (2006). Informacja o istotnych problemach wynikających z działalności i orzecznictwa Trybunału Konstytucyjnego. Wydawnictwo Trybunału Konstytucyjnego.
Trybunał, K. (2013). Informacja o istotnych problemach wynikających z działalności i orzecznictwa Trybunału Konstytucyjnego. Wydawnictwo Trybunału Konstytucyjnego.
Vanberg, G. (2005). The politics of constitutional review in Germany. Cambridge: Cambridge University Press.
Voigt, S., & Salzberger, E. (2002). Choosing not to choose: When politicians choose to delegate powers. Kyklos, 55, 289–310.
Acknowledgments
We are grateful to Jarosław Bełdowski, Matthias Dauner, Nora El-Bialy, Jerg Gutmann, Elena Kantorowicz, Agnes Strauss, Stefan Voigt, Franziska Weber, the editors of this journal, two anonymous referees, the participants of the EDLE seminar held in Bologna on November 6, 2013 and the participants of the ‘Empirical Legal Studies at Erasmus School of Law’ seminar held at the Erasmus University Rotterdam on November 27, 2013 for useful comments on that paper. The usual disclaimers apply.
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Kantorowicz, J., Garoupa, N. An empirical analysis of constitutional review voting in the polish constitutional tribunal, 2003–2014. Const Polit Econ 27, 66–92 (2016). https://doi.org/10.1007/s10602-015-9200-8
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DOI: https://doi.org/10.1007/s10602-015-9200-8