May It Appease the Court

Abstract In democracies the executive plays a critical role in appointing judges, and executives can use this power to manipulate the judiciary (e.g., packing a court, changing appointment procedures). In some instances, the executive has the authority to choose which judges to appoint to a high court. This article argues that even when executives have the final say on high-court appointments, they are still constrained by considerations regarding the power of courts to restrain executive authority. In particular, this article suggests that when a government is facing more litigation in courts, more judges are appointed to appease the courts. In other words, because courts can constrain executives through their verdicts, sometimes even leading to the nullification of important legislation, executives are cognizant of this constraint and choose to appease the court strategically in hopes of favorable verdicts. This effect even overshadows the impact of election years and appointments in the previous year. Evidence for this mechanism is taken from annual appointments to the Indian high courts from 1993 to 2021.