Constitutional courts as veto players

The number of constitutional courts and supreme courts with constitutional review rights hasstrongly increased with the third wave of democratisation across the world as an important element of thenew constitutionalism. These courts play an important role in day-to-day politics as they can nullify acts ofparliament and thus prevent or reverse a change in the status quo. Inmacro-concepts of comparative politics,their role is unclear. Either they are integrated as counter-majoritarian institutional features of a politicalsystem or they are entirely ignored: some authors do not discuss their potential impact at all, while othersdismiss them because they believe their preferences as veto players are entirely absorbed by other actorsin the political system. However, we know little about the conditions and variables that determine them asbeing counter-majoritarian or veto players. This article employs the concept of Tsebelis’ veto player theoryto analyse the question. It focuses on the spatial configuration of veto players in the legislative process andthen adds the court as an additional player to find out if it is absorbed in the pareto-efficient set of the existingplayers or not.A court which is absorbed by other veto players should not in theory veto new legislation. Itis argued in this article that courts are conditional veto players. Their veto is dependent on three variables:the ideological composition of the court; the pattern of government control; and the legislative procedures.To empirically support the analysis, data from the United States, France and Germany from 1974 to 2009 isused. This case selection increases variance with regard to system types and court types. The main finding isthat courts are not always absorbed as veto players: during the period of analysis, absorption varies between11 and 71 per cent in the three systems. Furthermore, the pattern of absorption is specific in each countrydue to government control, court majority and legislative procedure. Therefore, it can be concluded thatthey are conditional veto players. The findings have at least two implications. First, constitutional courtsand supreme courts with judicial review rights should be systematically included in veto player analysis ofpolitical systems and not left aside. Any concept ignoring such courts may lead to invalid results, and anyconcept that counts such courts merely as an institutional feature may lead to distorted results that overorunder-estimate their impact. Second, the findings also have implications for the study of judicial politics.The main bulk of literature in this area is concerned with auto-limitation, the so-called ‘self-restraint’ of thegovernment to avoid defeat at the court. This auto-limitation, however, should only occur if a court is notabsorbed.However, vetoes observed when the court is absorbed might be explained by strategic behaviouramong judges engaging in selective defection.