by Maria Popova. New York, NY: Cambridge University Press, 2012. 210 pp. Cloth $103. ISBN 978-1107014893. Paper $29.95 ISBN: 9781107694033.
Reviewed by Diana Kapiszewski, Department of Government, Georgetown University. Email: dk784 [at] georgetown.edu
POLITICIZED JUSTICE IN EMERGING DEMOCRACIES is a wonderful book that will teach its readers a great deal about courts in two countries of critical contemporary importance – Ukraine, on the border between East and West, and its daunting Russian neighbor. The central puzzle that motivates the book is why the rule of law in general, and judicial independence from incumbent politicians in particular, have proven so hard to establish in what Popova refers to as “emerging democracies” – polities that are neither consolidated democracies nor consolidated autocracies.
Popova employs both quantitative and qualitative analytic techniques to develop and advance a “strategic pressure” theory of judicial independence. She argues that in emerging democracies – where greater political uncertainty means politicians cannot be sure what type of regime, or which rules, will be in place in the short term – political competition motivates power-hungry incumbents to pressure courts to rule in their favor, thereby compromising their independence. Why is this so in such polities? First, Popova reasons, courts are more useful to vulnerable leaders in these contexts, where weak party histories and party labels mean that unfavorable court rulings can be damning for challengers, boosting incumbents’ chances of re-election. Second, some of the benefits that independent courts offer, such as guarantees of policy stability, are less relevant in politically unstable countries where uncertainty augments the importance of short-term gains. Finally, the costs of pressuring courts are lower in such polities, for example, when leaders can avail themselves of pressuring mechanisms “inherited from” an authoritarian regime, and when that pressure can be concealed given weaker press freedoms (pp.34-38). While Popova notes that she cannot test these compelling propositions, doing so represents a promising area for future study.
As reasonable as Popova’s theory sounds, its underlying logic (and that of similar arguments advanced by Trochev  and VonDoepp and Ellet ) runs counter to the prevailing academic consensus. Insurance theory, which has emerged in the past two decades as a central theory of judicial empowerment (Ramseyer 1994, Magalhaes 1999, Ginsburg 2003, Finkel 2004), argues that political competition motivates incumbent politicians to empower courts so that they can serve as an effective check on new leaders. As Popova rightly notes, insurance theory was developed to explain incumbent politicians’ behavior vis-à-vis high courts that decide [*368] constitutional cases, often with very broad effects. It is consequently an important theoretical question whether that theory also explains incumbent politicians’ behavior towards lower courts that decide more routine cases with more narrow effects. An exciting path for future inquiry that Popova’s work highlights is precisely why the logic of judicial empowerment might differ so much from high courts to lower courts.
Substantively, the book has much to recommend it. The topic is of obvious empirical and normative importance. Further, the book examines two crucial country cases in a part of the world that it is highly relevant in current affairs. While the two polities might seem incomparable given the extraordinary differences in their size and power, Popova makes a compelling methodological case for comparing them, showing how they vary, at least at the national level, with regard to the variables at the heart of two rival hypotheses – formal institutions for judicial protection (discussed later in this review), and political competition (the independent variable in both insurance theory and Popova’s strategic pressure theory) (pp.58-61). Further, unlike most of the comparative judicial politics literature, the book focuses on courts other than high courts; that is, it examines the judicial institutions that resolve the vast majority of disputes and whose behavior and independence it is thus crucial that we understand.
Recognizing that judicial independence may differ across issue areas, Popova focuses on decisions handed down by Russian and Ukrainian lower courts between 1998 and 2004 (i.e., in connection with the 2002-2003 elections in each country), in two types of cases: those concerning electoral registration (252 in total) and defamation law suits aimed at the media (800 in total). Both types of cases are politically salient, as their results have the potential to affect politicians’ ability to gain and maintain office. Moreover, the sheer magnitude of cases in each country illustrates significant judicial involvement in electoral politics. Popova clearly outlines the multi-stage process through which she selected these cases and the additional steps she took to correct for selection bias. Through her examination of these cases, she offers readers an extraordinarily detailed snapshot of a particular moment in time in these two countries.
Popova carefully conceptualizes and measures the outcome of interest. Indeed, the way in which she contextualizes her discussion of judicial independence – which is notoriously difficult to operationalize – in the existing literature demonstrates her mastery of the conceptual playing field and convinces us that we can do better. On the one hand, she understands independence to be an attribute of a court rather than a judge (i.e., she focuses on court rulings rather than judges’ votes). On the other hand, she considers judicial independence to be a relational and relative concept (courts are likely independent from different actors, and in different legal issue areas, to different degrees, pp.19-20). With regard to measurement, she eschews reputational indices, institutional measures that focus on formal institutions (e.g., budgetary autonomy), and behavioral reflections (i.e., interpreting a judicial challenge to a [*369] particular actor as evidence of independence from that actor) to focus on “decisional independence.” Courts that “produc(e) decisions that do not systematically reflect the preferences of extra-judicial actors” (p.6) exhibit decisional independence. She assesses judicial independence by using “actual trial outcomes” to calculate “the probability of success in court for different types of litigants” (p.11); her sophisticated multi-stage win-rate measure addresses some of the selection bias issues that plague other analyses of judicial outputs (pp.47-51).
While quite strong overall, two aspects of Popova’s innovative conceptualization and measurement are potentially concerning. First, it is unclear how well her operationalization of judicial independence, the dependent variable, aligns with other aspects of the book. She measures judicial independence by examining judicial outputs alone. However, her phrasing of the question and most of her conceptual discussion (e.g., pp.21-23) focus squarely on the behavior of incumbent politicians: she seeks to understand under what conditions they are willing and able to pressure courts. That is, she leaves aside the important question of how courts’ will and ability to resist political pressure affect or reflect judicial independence. Both politicians’ motivations and actions (whether and why they pressure courts) and judicial motivations and actions (whether and why courts can resist such pressure) seem important to consider when examining judicial independence, and one wishes the latter had been integrated into the analysis more systematically. Second, her operationalization of judicial independence seems to assume that all parties should have roughly the same litigation success rate, yet this assumption may not be valid. For instance, litigants with access to more financial and legal resources might develop stronger legal arguments, such that judicial decisions that did not systematically favor them might indicate a lack of independence. Decisions that did not systematically challenge litigants who consistently acted illegally or consistently filed cases for some purpose other than winning might likewise indicate a lack of independence.
These concerns in no way undermine the analytic contributions of the volume, however. As noted previously, Popova employs both quantitative and qualitative analytic methods, and the quantitative portion of the study (Chapters 4 and 5) is quite rigorous. Creating large-N datasets in data-poor contexts (or contexts in which reliable data are difficult to obtain) is an enormous and complicated undertaking, and Popova has done the discipline a service by creating these datasets and so clearly articulating how she did so. Moreover, an unusual quality marks the entire quantitative analysis: Popova thoughtfully considers the methodological trade-offs she faced, and clearly explains and justifies her methodological choices (for instance, how she scored and coded particular variables), significantly enhancing readers’ ability to evaluate the analysis.
The quantitative analysis reveals that Ukrainian judges are less independent from political incumbents than are Russian judges: judicial decisions are more skewed towards incumbents in the former than the latter. Popova asserts that any skew towards incumbents in [*370] either case reflects a lack of judicial independence because if courts were independent, incumbents would have been losing cases in each country (p.70). While this claim is not very strongly substantiated (pp.91-92), overall the chapters offer a very good measure of how the two courts score on the outcome of interest in two important issue areas. However, the broader question at the heart of the book – WHY Ukrainian courts are less independent than Russian courts – remains largely unaddressed, and Popova’s strategic pressure theory largely unassessed. She does find that more candidates were involved in court cases concerning electoral registration in more competitive districts in Russia while in Ukraine there was no strong correlation between district competitiveness and litigation – but if anything this seems to refute her theory.
Popova does an excellent job of positioning the qualitative analysis in Chapters 6 and 7 vis-a-vis the quantitative analysis: each chapter represents a targeted, strategic use of qualitative analysis. In Chapter 6, she takes on the rival hypothesis that variation in courts’ formal institutional insulation from the other branches of government explains variation in courts’ actual (decisional) independence from political leaders (pp.27-28). (These protections are stronger in Russia than in Ukraine, thus this alternative theory predicts the same outcomes as does her strategic pressure theory.) Popova uses qualitative evidence (mainly interview data) to illustrate how leaders in both countries employed five pressuring strategies over the time period of interest, effectively circumventing formal institutional protections. In contrast to the careful and nuanced measurement present in the quantitative chapters, however, here she does not explain why she picked the particular pressuring strategies she describes, nor does she recount how she selected her interview respondents or evaluate the evidentiary value of the information they provided. Further, her discussion of these strategies sometimes relies on one account or anecdote.
Chapter 7 seeks to bolster the quantitative findings by identifying the causal mechanisms underpinning the relationships hinted at there – that is – by showing how variation in the degree of political competition at the national level might produce cross-national variation in lower court independence. Earlier in the book, Popova offered an enlightening discussion of just these mechanisms (pp.38-40): political competition makes vulnerable courts more useful to incumbents; does not make judicial manipulation more costly for them; and increases the number of court cases whose outcomes matter to incumbents leading them to pressure courts in more cases. Given these dynamics, she explained, lower court judges faced a collective action problem in resisting, and so did not, leading to skewed decision making. Unfortunately, the chapter does not return to this earlier discussion of mechanisms, or the extremely interesting notion of judicial resistance. While Popova does address judges’ behavior in this chapter, her theory’s predictions for the behavior of these actors are not specified.
Despite some weaknesses, on the whole, Popova’s book is an expertly structured example of multi-method analysis. Further, it is built on a solid empirical base, garnered through outstanding field [*371] research entailing meticulous data gathering (pp.48-51). Accessibly written and well-sourced, the book is undergirded by four original datasets, each of which makes a significant contribution to our understanding of courts in unstable political contexts. Perhaps most importantly, Popova’s argument has crucial implications: if she is right, increasing political openness in “emerging democracies” – which can be found in every region of the world – may result in weaker judicial independence. Her challenge to the conventional academic wisdom concerning the relationship between political competition and judicial pressuring represents a critical first step toward a more nuanced understanding of how that relationship might vary across countries with different regime types, across courts at different levels of the judicial hierarchy, and across issue areas.
Finkel, Jodi. 2004. “Judicial Reform in Argentina in the 1990s: How Electoral Incentives Shape Institutional Change,” LATIN AMERICAN RESEARCH Review 39(3): 56-80.
Ginsburg, Tom. 2003. JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES. New York: Cambridge University Press.
Magalhaes, Pedro C. 1999. “The Politics of Judicial Reform in Eastern Europe.” COMPARATIVE POLITICS 31(4): 43-62.
Ramseyer, J. Mark. 1994. “The Puzzling Independence of Courts: A Comparative Approach.” JOURNAL OF LEGAL STUDIES 23(2): 721-747.
Trochev, Alexei. 2004. “Less Democracy, More Courts: A Puzzle of Judicial Review in Russia.” LAW AND SOCIETY REVIEW 38(3): 513-548.
VonDoepp, Peter and Rachel Ellett. 2011. “Reworking Strategic Models of Executive-Judicial Relations: Insights from New African Democracies.” COMPARATIVE POLITICS 43(2): 147-165.
Copyright 2014 by the Author, Diana Kapiszewski.