Judicial Institutions, Independence, and the Separation of Powers

We study the separation of powers between judicial and legislative institutions among the American states. Building upon previous studies, we consider how judicial selection/accountability mechanisms affect the judicial-legislative separation of powers game. We specify game theoretic models that consider these issues. Our formal models demonstrate that judicial elections can empower courts by providing them with direct signals of legitimacy from voters. We then examine the use of judicial review in state supreme courts between 2007 and 2017 both at the institutional and justice level. Our results suggest that electoral institutions empower courts in the separation of powers game, as these institutions are associated with significantly higher odds of invalidating legislative acts compared to unelected courts. Furthermore, we find no evidence that legislative court-curbing efforts constrain judicial independence and argue the time may be ripe to revisit the role court-curbing plays in judicial preemption in American politics.