The medieval common law offered few public law remedies, the chief being the negative principle that the king could do no wrong: he could not be sued, but his unlawful actions or commands were void. A new chapter began in the sixteenth century with the development of habeas corpus as a means of challenging imprisonment. Since government rested ultimately on the power to lock people up, here at last was a means of reviewing abuses of authority. Habeas corpus was augmented in the seventeenth century by mandamus and certiorari, to review encroachments on other kinds of liberty. Though the new remedies were used to challenge imprisonment by prerogative courts and other governmental actions, the judges sought to make them palatable to the crown by representing them as the exercise (on the king’s behalf) of a higher prerogative. They were ‘prerogative writs’, capable (in Coke’s words) of correcting ‘any manner of misgovernment’.

In this chapter, we rely upon two experiments to demonstrate that the public withdraws acceptance of executive actions implemented through contravention – over the objection of a court – but only if that court has a high level of judicial independence. But, if executives contravene a low independence court, it is as if the court had not acted: there is no difference in the public’s level of acceptance. Additionally, we find no evidence in any of our quartet of countries that judicial approval improves the public’s acceptance of an executive’s policy. Contrary to fears that citizens may blindly follow courts and adjust their opinions based on a court’s ruling, we find no evidence that even widely-respected courts are able to increase citizens’ support for an executive action by endorsing it.

In this chapter, we examine the effects of judicial review across citizens. We find that, when courts enjoy high levels of judicial independence, their rulings’ efficacy is amplified among citizens who have a strong regard for the rule of law; when citizens have low levels of support for the rule of law, the effect of a court’s ruling is muted. For courts that lack judicial independence, even those citizens who hold the rule of law in the highest regard are unaffected by a court’s determination that that an executive’s behavior is unconstitutional. Additionally, we explain how the efficacy of judicial review varies based on the public’s approval of the executive whose policy the court reviews. Notably, we find that the public opinion constraint on executives comes from their supporters, not their opponents. These findings point to an important implication: political sympathy for the executive may not necessarily be the Achilles heel of judicial efficacy it is often portrayed to be.

This chapter ties together our theory and analyses to draw general conclusions and to chart the path for future research. We discuss the implications of our findings for the broad set of research areas we engage, including theories of judicial independence, models of executive unilateral action, and the relationship between the rule of law and democratic entrenchment. We highlight strengths and weaknesses of our findings and research design and suggest paths for other scholars to move this research forward. We see many additional opportunities to interrogate our theory and its implications in other places, on other issues, and in other settings to facilitate a broader understanding of when and how courts are efficacious.

This chapter presents our research design. First, in recognition of our theory’s emphasis on judicial independence, we select four cases – the United States, Germany, Hungary, and Poland – that vary in their levels of judicial independence but share important political, legal, and socio-economic characteristics. We use surveys of elites and the public to demonstrate that variation in judicial independence is observed by experts and citizens alike. Second, the chapter establishes the crucial role the COVID-19 pandemic plays in our research design. The global pandemic presented a unique and fleeting opportunity to probe citizens’ reactions to rule-of-law violations because it produced real threats to the rule of law in ways that were felt simultaneously and similarly around the world. Third, we discuss the benefits of using survey experiments for a study like ours. Finally, we introduce the four countries in detail, describing their general political characteristics, the institutional characteristics of their constitutional courts, and their handling of the pandemic.

Even where a public consensus exists about the appropriate bounds of constitutional action, citizens’ capacity to punish executive overreach is not guaranteed. People often lack information about possible constitutional transgressions, and imposing meaningful political penalties for overreach requires coordinated action among citizens. We argue that courts are key to overcoming these obstacles: under the right conditions, courts, through the use of judicial review, are uniquely positioned to alert the public of constitutional transgressions and thereby transform the public’s support for the rule of law into a guardrail against executive overreach. We suggest judicial independence enhances the ability of courts to signal that an executive has gone too far. By contrast, courts with low levels of judicial independence are impotent: their decisions are not credible enough to affect citizens’ attitudes. We also expect the rulings of independent courts to be most effective among citizens who have a high level of support for the rule of law and to persist even in the face of stark partisan polarization.

We open the book by discussing the rise of constitutional courts and judicial review, emphasizing their stated responsibility as guardians of the constitutional system. We discuss existing theories of judicial power and independence, highlighting the concept of judicial efficacy: the ability of courts to create political penalties for elites who fail to abide by the constitutional limits on their authority. We discuss different types of penalties courts might levy and explain why attitudinal costs – particularly a loss of public support – represent the cornerstone of judicial efficacy. We then provide a summary of our argument, contrasting our theory of judicial efficacy with existing accounts of judicial power and impact. The chapter concludes with a roadmap for the rest of the book and a summary of our key findings.

Does partisanship undermine the ability of courts to affect citizens’ attitudes? We introduce a dueling theoretical account to our own which suggests that citizens prioritize partisanship over constitutional rules when evaluating executive actions. We test these rival perspectives in Germany and the United States with a survey experiment that leverages the countries’ federal structures. We find that citizens of both countries are remarkably steadfast in their willingness to punish executives – including copartisans – for breaching constitutional limits and flouting court orders. Contrary to fears that partisanship is an overwhelmingly pernicious threat to the rule of law, we show that independent courts are resilient in their ability to cut through the binds of partisanship, to monitor executives, and coordinate public actions to reign in incumbent excess.

This chapter outlines the content of the written Constitution and describes the historical context, debates, and compromises from which the Constitution emerged. A central theme involves the emergence of “judicial supremacy” or the dominant role of the Supreme Court in constitutional interpretation. At the time of the Constitution’s ratification, many people believed that each of the branches of the national government would interpret the Constitution for itself. Moreover, the Supreme Court was not initially regarded as a particularly important institution. In order to explain the rise of judicial supremacy, the chapter begins to develop the idea, borrowed from political scientific literature, that the Court’s power exists within and is constrained by politically constructed boundaries that are constituted by the willingness of other institutions and ultimately the American people to accept the Court’s rulings as authoritative. In support of the argument that the Court’s power to interpret the Constitution authoritatively depends on the support of political officials and the American public, not the clear mandate or logical implications of the constitutional text, the chapter debunks the myth that the Supreme Court’s 1803 decision in Marbury v. Madison definitively settled the question of the Court’s interpretive authority.

Chapter 6 on Separation of Powers offers a comprehensive exploration of how the balance of power between the judiciary and other branches of government plays out in climate litigation. The authors critically analyse key cases where these doctrines have been invoked, shedding light on how these doctrines shape the courts’ approach to climate cases. They underscore the significant variation in how this issue is dealt with across jurisdictions, acknowledging the diversity of constitutional and legal frameworks globally. Despite this diversity, the authors distil an emerging best practice where courts are increasingly recognising their crucial role in safeguarding fundamental rights and constitutional values in the context of climate change. This recognition is not a one-directional or universal trend but a nuanced evolution detectable across various jurisdictions and legal systems.

This chapter addresses a former practice where international civil servants of certain UN organisations, who were not satisfied with the decisions rendered by the administrative tribunal dealing with their employment matters, were able to have these decisions re-examined by the Court. These proceedings drew much attention to the access and procedural inclusion of individuals before the World Court. It argues that the Court was indeed the incorrect forum for wronged UN staff members seeking redress due to its own Statute barring access to individuals and therefore entailing a permanent inequality of the parties. However, it argues that while the Court was handling such disputes, there were ways to adjust its procedural mechanisms to further bridge the inequality between the parties.