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Judicial protection of disfavored minorities against oppressive legislation in majoritarian separation-of-power systems raises a puzzle: Why don't legislative majorities enacting discriminatory legislation curb judicial power when judges use their power to protect minorities and stymie the legislation? We answer this question by showing that judicial protection of disfavored minorities can emerge as an unintended by-product of majoritarian politics. We develop a model that includes the two aspects of judicial review Alexander Hamilton discusses in The Federalist No. 78: Judicial protection of disfavored minorities against hostile popular majorities, and judicial protection of majority interests against legislative depredation. It is the institutional linkage between these functions that induces popular majorities, within limits, to side with judges against legislatures even when those judges protect minorities that popular majorities want to oppress. [ABSTRACT FROM AUTHOR]

Formal constitutional systems of separated powers often fail to sustain meaningful systems of checks and balances in presidential-style democracies. What conditions support balance in the separation of powers and what conditions provoke instability and conflict? We draw on Madisonian political theory and research addressing the separation of powers in the United States to develop a game theoretical model of inter-institutional stability and conflict within a separation of powers system. Two factors emerge as catalysts for institutional instability and conflict among the branches of government: high-stakes institutional rivalry combined with uncertainty about the public’s relative support for various branches of government. We apply the model to the experience of Honduras in 2008–2009 that resulted in the coup ousting President Zelaya which illustrates the difficulty of developing credible checks and balances. [ABSTRACT FROM PUBLISHER]