Constitutional Review and the Selective Promotion of Case Results

Author(s): Jeffrey K. Staton

Source: American Journal of Political Science, Vol. 50, No. 1 (Jan., 2006), pp. 98-112
Published by: Midwest Political Science Association
Stable URL: https://www.jstor.org/stable/3694259
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 Constitutional Review and the Selective
Promotion of Case Results

Jeffrey K. Staton Florida State University

A significant majority of the world's constitutional courts publicize their decisions through direct contact with the national
media. This interest in public information is puzzling in so far as constitutional judges are not directly accountable to voters.
I argue that the promotion of case results is consistent with a theory ofjudicial behavior in which public support for courts
can undermine incentives for insincere decision making. In this article, I develop a simple game theory model that identifies
how case promotion is linked to judicial choice. Results of a simultaneous equations model estimating the Mexican Supreme
Court's merits decisions and its choices to publicize those decisions by issuing press releases to national media outlets support
an account of constitutional review in which judges believe they can influence their authority through case promotion.

cholars have long recognized the political value of
good public relations. In presidential studies, the
ability to go public is considered among the chief
executive's most powerful tools (Kernell 1992). Legisla-
tive research similarly finds an important role for public
strategies of issue promotion (Cook 1996). Even bureau-
scholars with an intriguing puzzle. In so far as consti-
tutional judges are not directly accountable to voters, it
is not immediately clear why they would promote their
resolutions among the mass media. Why a constitutional
court would promote some resolutions and not others is
even less clear.

cratic analysis suggests that agency concerns over public
information as shaped by the media may influence policy
implementation (Carpenter 2002). Yet when it comes to
judicial politics, scholars largely ignore the interest high
court judges take in shaping public information.
This omission is especially striking for two reasons.
First and foremost, high court judges engage in pub-
lic relations activities. While John Marshall's defense of
the United States Supreme Court's McCulloch decision
is well known (Gunther 1969), modern constitutional
court members frequently speak and publish work on
judging (Barak 2002). Nearly every constitutional court
in the world maintains a Website through which they dis-
tribute information on case results, and like Marshall, a
number of these courts selectively promote their deci-
sions among national media outlets.2 Second, the nature
of constitutional court appointment and tenure, which
separates these judges from the voting public, presents
I argue that the selective promotion of case reso-
lutions is endogenous to judicial decision making. In
particular, case promotion offers judges solutions to po-
litical problems induced by the separation of powers sys-
tem and the way the media covers constitutional review.
I develop this argument by extending Vanberg's (2001)
model of inter-branch relations, which integrates sepa-
ration of powers and legitimacy theories. I then test a
set of empirical implications derived from the model us-
ing an original data set on all constitutional decisions of
the Mexican Supreme Court between January 1997 and
December 2002 in review of state or federal laws. Given
the proposed link between judicial decision making and
case promotion, I seek to simultaneously explain the
Supreme Court's merits decisions and its choices to publi-
cize the results of those decisions by issuing detailed press
releases to print and television media. In what follows,
I first review how selective case promotion fits within a

Jeffrey K. Staton is assistant professor of political science, Florida State University, Tallahassee, FL 32306-2230 (jstaton@fsu.edu).

I would like to thank Gordon Hanson, Chris Woodruff, Jeffrey Weldon, Christopher Reenok, Steve Wuhs, Kathleen Bruhn, John Carey,
Randall Calvert, Lee Epstein, and three anonymous reviewers for their helpful comments and suggestions.

'Davis (1994) is a notable exception.

2An exhaustive search of all European and American high, constitutional, or international court Websites suggests that 71% of these courts
issue press releases summarizing at least some of their resolutions.

American Journal of Political Science, Vol. 50, No. 1, January 2006, Pp. 98-112

?2006, Midwest Political Science Association ISSN 0092-5853

98

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CONSTITUTIONAL REVIEW AND SELECTIVE PROMOTION 99

theory of judicial choice.

when I then
the public is able to develop the
monitor the reactions of their theore
representatives (2001, implications.
model and identify its empirical 347). In the sense that the public In the
is better able
sequent section, I discuss my research to monitor when the media covers a con- and resu
design
flict, the model suggests
I conclude with a few remarks on that media inattention
the presents
implications of
research. judges with a significant political problem. Without me-
dia coverage, courts may be forced to strategically de-
fer to political interests. While the Vanberg model nicely
integrates separation of powers and legitimacy theories,
Separation of Powers, Legitimacy,
he treats the likelihood that the public will be informed
and Public Relations about interbranch conflicts as exogenous. But what if
courts are able to influence their media coverage? It would
seem likely that judges might wish to exercise that power.
Comparative researchers have increasingly turned to sep-
aration of powers models in order to explain why someIn the model that follows, I identify conditions under
which public relations can address the problem posed
constitutional courts appear unwilling to hold political
officials accountable for their behavior, no matter how
by media inattention and ask how the ability to influ-
ence media coverage might influence decision making
suspect (Helmke 2002; Iaryczower, Spiller, and Tommasi
itself.
2002; Vanberg 2001). Although these models assume that
judicial decisions are driven by policy preferences, they IfVanberg is correct, media inattention presents con-
stitutional judges with a political problem, but because
also posit that interbranch politics may influence choice
(Epstein and Knight 1998, 22-51). Legislators and exec-
reporters do not perfectly translate jurisprudential lan-
utives ordinarily enjoy control over judicial institutions
guage, so does media attention. Although the press fre-
quently communicates merits decisions accurately, they
including jurisdiction, budgets, and tenure. This control
often misinterpret jurisprudential rationale, an outcome
may grant politicians undue influence over the judiciary,
especially where judicial institutions are relatively easythat
to judges themselves cite as frustrating (Davis 1994, 31).
change (Ferejohn 1999; Ramseyer and Rasmusen 2001).Indeed, the Mexican Supreme Court, the empirical ob-
In light of these mechanisms of control, separationject
ofof this study, has explicitly stated a concern with the
powers models predict that high courts will be increas-
way reporters cover the jurisprudential theories that sup-
port their decisions.3 In the model that follows, I con-
ingly likely to strategically avoid conflict by upholding
sider how the incentive to ensure accurate reporting might
challenged public policies as the importance relevant of-
interact with the more political motivation described
ficials assign to those policies increases (Helmke 2002,
294). above.

Separation of powers models are theoretically precise,
but they cannot explain why courts sometimes challenge
powerful officials. Judicial legitimacy theorists propose
that because the coercive sources of judicial power are
minimal, courts heavily rely on societal beliefs in their le-
gitimacy to gain compliance. Legitimacy here is conceptu-
alized as diffuse public support or deep commitment to the
institutional integrity of the judiciary (Caldeira and Gib-
son 1992, 638). Although legitimacy theory is designed to
explain personal acceptance of unpopular decisions, it is
a short step from the individual to the institutional level.
Vanberg integrates key insights from these two ap-
proaches (also see Friedman 2000). In his model, courts
and politicians interact under the sometimes-watchful
eye of a public, which is capable of punishing recalci-
trant officials if aware of the conflict. In this sense, diffuse
public support provides courts with a sort of political
cover; however, this is only true if people are informed
about the decisions they are purportedly enforcing. A key
empirical implication of this model is that constitutional
courts should be more likely to strike down public policies
To summarize, the selective promotion of case reso-
lutions might be able to address two problems consistent
with a model that integrates separation of powers and le-
gitimacy theories. Promoting cases both may be a means
of generating media attention when it is particularly useful
and ensuring accurate communication of jurisprudence
when the media decides to cover a decision. The following
model considers the degree to which case promotion can
resolve these problems.
A Separation of Powers Theory
of Case Promotion
Figure 1 depicts an extensive form game of incomplete
information played between a constitutional court and
a national executive, though the second player may be
3This policy is published in "Compromiso, 6rgano informativo del
Poder Judicial de la Federaci6n," nfimero 1, julio-agosto 1999, pp.
21-22. [Commitment: A Newsletter of the Judicial Branch of the
Federation, 1(July-August):21-22].

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 100 JEFFREY K. STATON

FIGURE 1 Extensive Form of Baseline and Promotion Models

Nature

Court -------------

U UP U UP

-E -K 0 -K
0 0 0 0

S SP S SP

Executive

O D 0 D O O D

Ac-C -C-E Ac-K -C-K Ac -C Ac-K-C-K

-AE -B -AE -B -AE 0 -AE -B

Legend
Parameters Actions
p Probability of media coverage U Uphold
Ac Court's value of alternative policy UP Uphold and promote
AE Cost of alternative policy for Executive S Strike down
B Cost of public backlash SP Strike down and promote
E Cost of media errors O Comply
K Cost of promoting a case D Defy

Assumptions
ACE 9; AE, B,E,K>O; IAcI>E,K

Note: Figure 1 specifies the extensive form of both the Baseline and Promotion ver
the game. The Actions available to the players only in the Baseline version are bol

tion of theIstatus
conceptualized as any government official.4 begin quo,bynoncompliance may also involve
discussing a baseline model in which the
taking court cannot
retributive actions against the court, the severity of
which
promote its opinion. I then analyze the I parameterize
same model in the court's payoff function.
but
allow the court to promote its decision Before
in the either player moves, there is a random draw
national
media. The bolded lines in Figure 1 indicate from athe
set that
onlydetermines
ac- the level of media attention,
tions available in the baseline model. The court is asked and by implication, public awareness of the case. Either the
to review a policy associated with the executive. It may media covers the case and accurately communicates the
uphold the status quo or strike it down, substituting an court's merits decision or the media ignores the decision
alternative policy. If the court strikes it down, the ex- and the public goes uninformed about the interaction.
ecutive chooses whether to comply with the alternative. Denote the probability that the media covers the case p.
I conceptualize noncompliance broadly. Although non- The court does not observe the outcome of the draw, but
compliance always involves the continued implementa- it knows the distribution from which it is drawn (i.e.,
the court knows p). Since the executive moves after the
decision it observes whether the media has covered the
4I thank Georg Vanberg for his suggestions concerning how to sim-
ply endogenize case promotion in the context of his model. case. As a result, the executive is perfectly informed about

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CONSTITUTIONAL REVIEW AND SELECTIVE PROMOTION 101

TABLE
the history of the game. Thus, 1 Baseline
a strategy Model
for the cour
function sc, that assigns an action, Uphold or Strike D
Executive Preferen
to its single information set, depicted by the dashed
Value of Status Quo
in Figure 1. A strategy for the executive is a functio
to a Public Backlas
that assigns an action, Comply or Defy, to each of its
singleton information sets.
Court Large Small
Preferences
I assume that judicial choice (AE > B) (AE a
is primarily : B)
function
policy preferences. I fix the value of the status quo po
Court prefers Case 1 Case 2
at 0 for both players. If the executive faithfully implem
the status quo For all p For all p
an alternative, the court receives Ac E E . This allow
(Ac _ 0) scquo
court's evaluation of the status = (Uphold)
relativesc = (Uphold)
to the al
sE = (Defy, Defy) SE = (Comply, Defy)
native to vary across cases. The court pays a cost C >
Court prefers Case 3 Case 4
the executive fails to comply. Although I assume tha
media accurately covers the
thealternative
merits For all p 4A. consi
decision, For p
(Ac > 0) sc = (Uphold) sc = (Uphold)
with the judicial belief that reporters often mischara
SE = (Defy, Defy) SE = (Comply, Defy)
ize jurisprudential details, I assume that 4B.the
For p court
> Ac pa
cost E E (0, IAc1) if the media covers the resolution.
sc = (Strike Down)
cost represents the value the court placesSE on reporter
= (Comply, Defy)
curately communicating their decisional rationale. If
Note: Table shows SPE strategy profiles in the baseline model for
media ignores the case, there is no rationale to misre
given values of the parameters. The court assigns probability p to the
sent and the court saves E.5
history Media Coverage and 1 - p to the history No Coverage.
The executive is assumed to prefer the status quo ov
any alternative and will pay a cost AE > 0 if she
allow
plies with an unfavorable for since the heart
decision. If of the diffuse
the public support
executive f
to comply and the mediaconcept is that people arethe
is covering willingcase,
to accept she
unpopular
pa
decisions as long as the decisional
cost among her constituents for defying the court, source is legitimate.
0. A natural interpretation Forof
any these
given valuesparameters
of the parameters, there is a
incor
unique pure strategy subgame
rates the concepts of specific public support for the pperfect equilibrium (SPE).
Table
under review (the public's 1 lists the SPE strategypreferences)
issue-related profiles in the baseline
diffuse public support formodel
thefor given values of
court. Ifthe
weparameters
assume (see appendix
tha
executive is responsive tofor proofs).
public preferences, then AE
Table 1 partitions
be interpreted as specific public supportthe combinations
for ofjudicial
the statuand ex-
ecutive preferences over
policy and B as diffuse public support for the court.the status quo into four general
terpreted in this way, thecases. The court prefers
model allows the status quo to the alternative
executives to
highly legitimate courts in Cases 1 and
over 2 (Ac < 0) andpolicies,
valuable prefers the alternative
but in it
Cases 3 and 4 (Ac > 0). The
allows executives to implement decisions that are un value the executive assigns to
the status quo is greater
ular among their constituents, as longthan the cost
asofdiffuse
the public back- p
lash in Cases
support is sufficiently large. 1 and 3 (AE
This is> a
B). In Cases 2 and 4 the
sensible value of
result
the status quo is smaller than the cost of noncompliance
(AE < B). For Cases 1, 2, and 3 the court's equilibrium
5I take the judicial interest in ensuring accurate coverage asstrategy
a pro- is to uphold the status quo. In the first two cases, it
fessional end in itself; however, it may be that judges perceivedoesthethis sincerely. As should be expected, upholding the
inaccurate communication of their rationale as threatening to dif-
status quo over an inferior alternative is always optimal
fuse or specific public support. If the written opinion is the primary
(Cases 1 and 2). This captures the reasonable implica-
tool through which courts persuade dissatisfied people or propagate
the myth of impartiality (Gibson, Caldeira, and Baird 1998, tion 345), that
a courts do not veto public policies they sincerely
key component of legitimacy, inaccurate reporting may affectlike-strategic
their judicial behavior is essentially deferential.6
control over diffuse support. If this is true, then a reasonable alter-
In Case 3, where the court prefers the alternative policy yet
native modeling choice is to have the court pay E' > E when it strikes
down the policy, since this is where the court faces the largestthe set
executive will defy all decisions, the court strategically
of dissatisfied citizens for whom the written opinion may be per-
suasive. While reasonable, this change only increases the incentive
to publicize decisions striking down the status quo and does 6Seenot
Helmke (2005) for a model of judicial behavior in which courts
affect the decision-making results. veto policies that they sincerely prefer.

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 102 JEFFREYK. STATON

upholds the Promotion

status Model qu
The model only predic
media coverage in Case
The promotion model, also depicted in Figure 1, is identi-
public backlash is suff
cal to the baseline model in all but one regard. I allow the
Court prefers the alter
court to promote a resolution among the national media
for relatively low
at a cost K > 0. K measures the administrative costs as- v
strategically uphold th
sociated with promoting a case and the opportunity cost
ciently likely that the
of promoting one decision over another. Maintaining the
interaction. For suffic
assumption that constitutional politics is ultimately about
advantage of likely m
policy, I assume IAc > K.7 I further assume that if the
status quo.
court promotes the resolution, the media accurately trans-
The results of the bas
lates information about the case to the public. Clearly, this
analysis, though he d
is a strong assumption, but it reduces the set of parameters
ditional effect I now introduce. If courts are unable to
and relaxing it will not materially affect the implications
influence their media coverage the following proposition
of the model. What matters is that case promotion at least
is consistent with the equilibrium results.
increases the chances of quality media coverage.8 The re-
maining structure of the model is identical to the baseline.
A strategy for the court continues to assign a single action
Proposition 1. The relationship between media coverage
to its single information set; however, the set of actions
and judicial activism is conditioned by the importance of
now includes the following choices: Uphold; Uphold and
the status quo relative to diffuse public support (i.e., the size
Promote; Strike Down; and Strike Down and Promote. An
of AE relative to B). When policy importance is relatively
executive strategy assigns an action, Comply or Defy, to
small, courts should be more likely to strike policies down
each of its four singleton information sets.
as p increases; however, when importance is relatively large,
Like the baseline, the promotion model produces im-
there should be no relationship between p and the court's
decision. plications for judicial decision making; however, it also
suggests implications for the selective promotion of case
results. More generally, it suggests limits to case promo-
In other words, courts should be more aggressive when
tion as a strategy for resolving the problems of media
the public is likely to be able to monitor the interaction,
inattention and reporter inaccuracy. As before, there are
but only if the status quo is not overly important. When it
four general cases to consider. Table 2 summarizes the
is, no amount of public monitoring will enhance judicial
results, which suggest the following proposition if courts
authority.
can control their media coverage.
The baseline model highlights the two problems
judges may be able to resolve through public relations.
First, it is the uncertainty surrounding the public's ability Proposition 2. Courts should be less likely to strike down
to monitor the interaction that produces strategic judicial policies as importance increases relative to diffuse public
behavior in Case 4. If the court were sure that the media support; however, there should be no relationship between
would cover the resolution, it would have no incentive to media coverage and decision making.
uphold the status quo. Thus, if judges are able to induce
It is still the case that courts sincerely uphold the status
media attention for their resolutions, they may be able
quo in Cases 1 and 2 and strategically uphold the status
to eliminate the necessity to strategically defer in situa-
quo in Case 3; however, it is no longer the case that the
tions like Case 4. Second, in all cases, the Court expects to
court will uphold the status quo for sufficiently low p in
lose pE in equilibrium, the cost of imprecise media cov-
erage discounted by the probability that the media will
7This assumption reduces the number of cases I consider. Allowing
report on the case. This problem may be resolvable via
K > [Ac I does not affect the relative incentives to promote decisions
public relations as well. The choice publicly to promote a when courts either uphold or strike down; however, it would allow
decision may give judges the ability to clarify their resolu- for some equilibria in which courts strategically uphold the status
quo in order to avoid having to pay the cost of promotion, a result
tions, improving on the reporters' description of the case.
that only obtains for small Ac. Since policy is generally perceived
I now turn to a version of the model in which the court
to be paramount, the model assumes away this possibility.
is able to produce accurate media coverage through case
8Davis (1994) provides empirical support for this claim in the
promotion, which allows me to evaluate the plausibility United States, and my own investigation of the Mexican data, which
of solving these problems through case promotion. I briefly discuss below, supports it as well.

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CONSTITUTIONAL REVIEWAND SELECTIVE PROMOTION 103

TABLE 2 Promotion Model Equilibrium Pr

Executive Preferences:
Value of Status Quo Relative to a Public Backlash

Court Large Small

Preferences (AE > B) (AE < B)
Court prefers the status Case 1 Case 2
quo (Ac < 0) 1A. For p < K 1A. For p
sc = (Uphold) sc = (Uphold)
SE = (Defy, ... , Defy) SE = (Comply, Defy, Comply,
1B. For p > B. For p >
sc = (Uphold and Promote) sc = (Uphold and

SE = (Defy,...., Defy) SE = (Comply, Def

Court prefers the Case 3 Case 4
alternative (Ac > 0) lA. For p < K 4A. For p C + A - K
sc = (Uphold) sc = (Strike Down and Promote)

SE =For
1B. (Defy,....,
p>
E
Defy)
K 4B.SE For
C+Ac-E
= (Comply, Defy, Comply, Defy)
p> C+Ac-K
sc = (Uphold

SE = (Defy ..
Note: Table shows SPE
assigns probability p t

Case 4. resolution
Instead, whens
strike down the
pS. statu
First, n
erage via case
courtpromot
upho
p, the is
court identical
merely s
vantage ofthe
the reason
media's
model suggests that
affinity p
for
of publicize
strategic judicial th
d
about public inform
recognize th
the value (and
of thethe Co
status
quo is highly valued,
quo), then
monitoringCourt
will prom
chan
In short, public
the rela
convers
but there are
the limits-l
cost of
portance of the
racy statu
or it i
Finally, the
andpromotio
will be
promote fieddecision
both for
C + A- F a
cisions striking it
natively, if K > E, the court will never dow
promote a decision
mote these
upholdingdifferent
the status quo, because p > 1, and no p is this
large. For the same values of K and E, pS E (0, 1), and it
Propositionwill be satisfied for
3. sufficiently low p.
Court
The intuition behind this result is as follows. Whether
decisions that strike
uphold it. the court upholds the status
This quo or strikes it down, it faces
relation
the media theis problem associated
unlikely with imprecise media coverage
(i.e., the parameter E); however, when the court strikes
Using the
down a policyresults i
it faces the additional political problem of
CA-K The court
noncompliance. If the cost of promotion is wilsufficiently
the small, there
status quo will be cases in which
if the court
anpromotes

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104 JEFFREYK. STATON

decisions public policies than those upholding policies.

upholding the This st
timal to relationship should be especially
promote a strongdecisio
when the
is optimal media is unlikely
to promote to cover the resolution. a d
explains the direct relatio
and case I now turn to the data I use to test these implications.
promotion; the f
the conditional relationshi
small enough so that pU ca
p, the court will promote
reporter inaccuracy,
Research Design but a
to promote in order to ad
cause it is Mexico
unlikelyat the turn of the twenty-first century
that presents th
correct. At an excellent environment for
such testing the argument. As
values of
the status Helmke
quo (2002,
pr 291) notes,
willstrategic models are more
be likely
potential to explain judicial behavior in settings where institutions
noncompliance.
In addition areto
relatively unstable. Although a monumental judicial
suggesting
esis, this reform in 1994 significantly
result expanded the Court's juris-
suggests th
public diction,
relations tenure was changed
as lifea
from to a nonrenewable
strate
tion and 15-year term, its membership was reduced
reporter from 26 to 11,
inaccura
portance of all ministers
the were forced to resign,
status and a new Court was quo
to resolve appointed. This was potential
the not the first such change during the n
ing from twentieth century. In fact,inattentio
media the size of the Supreme Court

ability of changed four times between

courts to the adoption of the 1917
resolve
posed by theConstitution
costand the 1994 reform. Rules
of governing judi-
prom
trarily cial tenure
small K, changed fivecourts
times over that period. In all, the can
case federal constitutional articles governing
promotion. To the judiciary
revie have

suggest been amendedtestable

three over 69 times since 1928 (Carranco Zfifiiga hyp
judicial 2000, 97). Also, Mexican historians
decision making, and political scien-
generates a tists point to at least three clear instances of institutional for
prediction
change during the twentieth century that were designed to
reign-in an activist Supreme Court (Domingo 2000, 713;
Decisional Hypot
Schwarz 1973, 313). Thus, it would appear at least facially
valid to assume that the ministers of the Supreme Court
H1 who took theModel):
(Baseline bench in early 1995 might have perceived aIf a
trol its risk of further institutional
media coverage, tinkering. i
to strike Second, the Supreme Court's
down membership did not
public p
is likely to change
cover the
between February 1995 and December 2003, when out
lationship is
two conditione
members of the original 11 stepped down. This ab-
the status quo policy
solute stability in membership allows me to control for for
When the value
aggregate judicial ideology.of status
Unless preferences are chang-
media coverage
ing over the course of theshould
period studied, the aggregate ha
ideology of the court, whatever that may be, is controlled
H2 (Promotion Model): I
by design.
is able to control its me
In addition, three key assumptions of the theoreti-
be less likely to strike do
cal model are met in the Mexican case. First, the Court
but media coverage shoul
has formally stated that it wishes to ensure accurate me-
making.
dia coverage of its decisions.9 Second, there is reason to
believe that Supreme Court coverage was largely neutral

Case Promotion Hypothesis
H3 (Promotion Model): If a constitutional court
is able to control its media coverage, it should be
more likely to promote decisions striking down
during the period I study. The Supreme Court's own in-
ternal analysis of its daily coverage in 25 newspapers and
magazines during the first half of 1999 classified 87% of
9See note 25.

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CONSTITUTIONAL REVIEW AND SELECTIVE PROMOTION 105

the 3,222 stories as neutral and 93% Data

as either neutral o
positive. Of the 230 articles judged to include a negativ
opinion of the Court, 173I use(75%) involved
an original auniverse
data set on the reporterof SupremequCou
ing an individual that disagreed with the decision, rath
constitutional decisions in review of state or federal la
than a negative editorial.10made
Further, many
in plenary session of January
between the remain1, 1997 an
57 articles had nothing to December
do with constitutional
31, 2002.14 cases,
The data set includes three kinb
rather concerned judicial of
reform proposals. Third, ther
constitutional actions: amparo appeals, constitutio
is evidence that the Court has been
controversies, ableofto
and actions generate Ampa
unconstitutionality. co
erage through case promotion. My own analysis sugges
is a form of individual constitutional complaint wherei
that the newspaper La Jornada was roughly
persons, organizations, 1,300%
and corporations may seek mo
redr
likely to cover a case in which the Court issued a pr
in federal court against alleged governmental violations
release than a case for which it did not. This result holds
individual rights. The Supreme Court hears amparo suit
up to a variety of multivariate specifications in which
on appeal from lower federal district and circuit courts.
control for elements of newsworthiness.11
contrast, the Supreme Court hears constitutional contr
The final advantage of the
versies Mexican case concerns
and actions of unconstitutionality ju-i
in the first
dicial legitimacy. Diffuse support is controlled
stance. In constitutional controversies, by resear
the Court resolv
design, unless it is rapidly changing over the short tim
jurisdictional conflicts between levels of government a
period of the study. This across
result isofhighly
branches unlikely
government within a level (i.e.,give
feder
the slow way diffuse support has been shown to develo
ism and separation of powers issues). In actions of unco
(Gibson, Caldeira, and Baird 1998,
stitutionality, 353).
the Court Still
exercises abstract the stu
review over t
does require that diffuse constitutionality
support be greater than zero
of state laws, federal laws, and intern
it is not, then the court will have no incentive to info
tional treaties."5 With one limited exception, the Suprem
the public, since a public backlash
Court's against
jurisdiction in all three cases a recalcitr
is mandatory.16 Th
official will be costless. Unfortunately, thereclaims
the data set includes all constitutional is no pre
that met t
cise measure of diffuse public support
Court's statutorily for the
defined jurisdiction.17 This Mexi
is the fir
Supreme Court during the period studied here.12 T
said, the available public opinion data
vestigator for the suggests
2000 wave that
of the World Values dif
Survey. I
formation
fuse support may not have been on the Reforma sampling design
completely can be obtained
absent. In
http://www.reforma.com/encuestas or by contacting the autho
series of national opinion surveys conducted by the new
have been unable to locate national public opinion results for t
paper Reforma between December
period between 19972000
and 2000.and March 2002
respondents were asked to evaluate the job of the Supre
14All replication material is available at http://mailer.fsu.ed
Court. During this period, theCopies
--jstaton. percentage of opinions
of full Supreme Court responden
are available
expressing favorable opinions varied between 40% a
the Web at http://www.scjn.gob.mx.

50%, statistics that climb 15On

as the
high as between
differences 87%these
when excludin
actions see Carranco Zif
nonresponses and neutral (2000) or Cossio (2002).
ratings.13
16Pursuant to a 1988 constitutional amendment, the Supreme Co
enjoys a limited power of discretionary review through wha
1oSee "Quienes hablaron bien y quienes hablaron mal de la Supreme
called atracci6n (Mexican Constitution, Article 107, Section 8
Corte de la Naci6n en el primer semester de 1999? ["Who spoke deems an issue raised in an appeal outside of its appel
the Court
well and badly of the Supreme Court of the Nation duringjurisdiction
the first fundamentally important to the law, it may exerc
half of 1999?"]. This report is on file with the author. It may be used In addition, the Federal Attorney General may requ
atracci6n.
with the permission of the Supreme Court. that the Court take up a case of national interest, and circuit cour
may certify appeals for Supreme Court review.
"Results available upon request.
'7Between 1995 and 2002 the Supreme Court resolved 3,084 cas
12Unfortunately, neither the World Values Survey nor the Lati-
The data set restricts the number of analyzable cases to 1,536. Ma
nobar6metro include items appropriate for measuring Supreme
cases with distinct case numbers address identical legal issues a
Court support. The World Values Survey asks about pub-
resulted in identical resolutions resolved by an identical vote
lic trust in the "legal system" (Question V137, 1995 Wave,
the same day. For example, a major constitutional reform on i
http://www.worldvaluessurvey.org) while the Latinobar6metro
digenous rights reform passed by Congress in the summer of 2
asks about trust in the "judiciary" (Question V.2.32, http://www.
generated 292 distinct constitutional controversies filed by mun
latinobarometro.org). Given the high levels of public confusion in
palities from across the country. Each of the 292 cases challenged
Mexico about what institutions fall with the judiciary or the legal
procedures Congress adopted when considering the amendme
system, these are highly imprecise measures of institutional com-
These cases make up nearly 10% of the Court's total constitutio
mitment to the Supreme Court itself.
caseload, yet they were all formally resolved on September 6, 2
13During this period, the director of public opinion byfor
the Re-
same vote and for the same reason. These cases are clea
forma was political scientist Alejandro Moreno, the country in-
not independent of each other.

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 o106 JEFFREYK. STATON

quantitative care more aboutof

study federal policies
whichthan state policies, and I am
full range of
constitutional
they care more about the policies challenged through con- actio
for the stitutional controversies and actions
measurement of of unconstitutional-
policy im
ity than they do about those challenged through amparo.
Given these assumptions, I generate a scale of increasing
federal importance, coded from 0 to 3, ranging from a
Measurement and Estimation
state law challenged via an amparo suit to a federal law
challenged under the action of unconstitutionality or con-
Since I will test both decisional and case promotion stitutional
hy- controversy.20
potheses, I require two dependent variables. The first,The first assumption would appear relatively uncon-
Strike, indicates whether the Court invalidated a policy
troversial. On average, the Federal Congress likely cares
challenged through one of the three constitutionalmore
ac- about the federal penal code than it does about the
tions. Strike is coded 1 if the Court supported at least one
penal code of Nuevo Le6n. On the other hand, the first
complainant argument made on the merits, and 0 oth- assumption deserves further justification. Resolutions to
erwise. The second dependent variable, Press, is coded amparo
1 suits settle only the immediate controversy be-
if the Court issued a press release announcing the result,
ing adjudicated.21 In contrast, decisions in both consti-
and 0 otherwise. Press releases on case outcomes typi- tutional controversies and actions of unconstitutionality
cally summarize the major components of the resolution, have the potential of setting general effects.22 With respect
including the parties to the case, the constitutional ques-
to the measure, I argue that federal officials ought to care
tion, and a brief statement of the rationale. Formally, press
more about resolutions that have the potential of setting
releases are issued by the Court's public relations office
precedent than about those that do not.
(DCS). Since the DCS director remains in close contact Constitutional controversies and actions of uncon-
with the Supreme Court president, there is little reason to
stitutionality also deal with what we might understand
believe that the kinds of cases the DCS publicizes fail to
as generically more significant political issues. Typical
reflect the Court's own preferences.19 constitutional controversies involve state-municipal con-
If the promotion model is correct, these variables flicts
are over the autonomy of local governments, state-state
jointly determined. We can estimate their joint distribu-
boundary disputes, and federal interbranch conflicts over
tion and test the hypotheses specified above by the fol-
competing claims on power (Fix-Fierro 1998). Actions
lowing recursive simultaneous equations model. of unconstitutionality frequently involve political party
Strike = pl(Importance) + f2(Coverage) challenges to the constitutionality of electoral laws, rules
quite essential to political interests. These are cases that
+ 33(Importance * Coverage) + ar X, + ul affect large numbers of people and large sums of money.

Press = 34 (Strike) + 35(Coverage)

20The results are robust to an alternative coding scheme where I
+ 36(Strike, Coverage) + o2 X2 + u2, combine the state policies into one category and where I use a
dummy variable distinguishing between state and federal policies.
where Importance is a measure of political importance
assigned to the challenged policy by Mexican federal offi-
21The Court may establish formal jurisprudential theses in amparo.
A jurisprudential thesis is binding on all lower federal court judges;
cials, Coverage measures the court's expectations about
however, it is not clear that theses significantly affect bureaucratic
subsequent media coverage, and the Xi are vectorsdecisions
of to enforce laws. Legal principles may become part of the
control variables for each equation. As recommended by
jurisprudence when the Court establishes that it has invoked a simi-
lar principle in five consecutive cases (Ley de Amparo, Article 192).
Greene (1998), this model can be estimated via bivariate
These theses may be abrogated by a coalition of eight Ministers
probit.
voting contrary to provision under analysis (Article 194).
I measure federal policy importance by appealing to
22When the Federation moves a constitutional controversy against
the kind of constitutional claim under review and the level
the laws or acts of a state or municipality, decisions supporting the
of the public official against which the claim was raised. federation's claim, when made by a super-majority of eight minis-
Two assumptions underlie the measure. Federal officials ters, set general effects. Similarly, if a state moves a constitutional
controversy against a municipality, the Court's decision will govern
that state if it rules with the state by a super-majority vote of eight.
18Cossio (2002) uses a qualitative research design and neither
In all other cases, the Court's decisions only affect the immediate
Magaloni and Sanchez (2001) nor Schwarz (1973) study all three
actions. parties to the case. Similarly, for the action of unconstitutionality,
the effects of the decision are general if the Court resolves the case
Although many press releases are drafted by DCS staff, the lan- by a super-majority of eight votes. Otherwise, the decision only
guage is approved by individual ministers, the DCS director or his affects the immediate parties to the case (Mexican Constitution,
immediate assistant. Article 105).

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CONSTITUTIONAL REVIEW AND SELECTIVE PROMOTION 107

In contrast, state entitiesandhave

2002, I include dummies for the period
extremely of truly di- stan
limited
vided national
in amparo; political parties have government under Vicente
none. Also, Fox (Divided)
indiv
and the period of unified
are prohibited from challenging PRI government,
electoral when the PRI
codes thro
only enjoyed
amparo. Finally, the Court itself a plurality
has of support
arguedin the legislature
that un- am
der Ernesto
suits are generically less Zedillo (Unified-Pl). than
important Thus, the period of truly
constitu
unified
controversies and actions ofgovernment under Zedillo is the base category.25
unconstitutionality.23
In order to address the possibility
I measure the Court's expectations regardingthat Supreme Court
subse-
quent media coverage bydecisions were affected by
appealing topartisan
priorfactors (Magaloni
nationaland
Sanchez
media coverage of the case or2001),
theI also include a dummy variable
conflict that codedgener
1
if authority
it. Here I assume that the Court responsible for the challenged policy
estimates is either
a higher p
a priista
ability of ex post coverage whenexecutive or
thea majority
case priistahas
legislature and 0
already
otherwise.26
covered by the print media. Because each member of
I also control
Supreme Court receives a daily for the identity
news of the plaintiff
briefing moving
with ph
the constitutional
copied articles of every print story action, capturing
that the notion that
even the
tangent
quality of legal representation
relates to the federal judiciary, print coverage should vary according
isto a na
plaintiff
way for them to generate type and using
beliefs the assumption
about that political sta-
subsequent l
of public information (also see proxy
tus is a reasonable Epstein and
for litigant resources Segal 2
(McGuire
1995; Sheehan, Mishler, and
Specifically, I use the newspaper La Songer 1992). The issue ofas
Jornada le- a p
for general media attention.24 Coverage
gal representation is issue
is an especially relevant coded
in Mexico, 1 if
Jornada ran an article onwhere
the access to good counsel is limited prior
controversy and the dispari-
to th
ties between the legal representation
cision and 0 otherwise. Unsurprisingly, of variousthat
cases parties is rece
prior coverage represent often
only great3%
(Rubio,of
Magaloni,
the and total.
Jaime 1994, On
119-34).the
Controlling
hand, prior coverage is an for plaintiff identity
excellent involves estimating
predictor ofa se- wh
ries ofsubsequent
the resolution will receive dummy variables that account
media for a large number
attentio
Jornada covered 72% of of the resolutions
plaintiff to cases
categories.27 The base category is the modalon w
plaintiff, a private
it had previously run a story; it individual.
only covered 3% of
resolutions to cases that itIn had
the Press previously
equation, I control for a Supreme Court-
ignored.
based theory of case promotion. In 1999, the Supreme
Court issued a formal policy statement defining the DCS
Controls mission. In addition to its charge to ensure that media
coverage accurately reflects jurisprudence, the DCS was
In the Strike equation, I control for three potential influ-
asked to publicize the results of cases that resolve intrinsi-
ences on judicial decision making. Iaryczower, Spiller, and
cally "important" issues of Mexican law.28 Unfortunately,
Tommasi (2002, 704) suggest that courts should be more
the policy does not define what the ministers mean by an
deferential under unified government, because it is easier
intrinsically important issue, and there does not appear
for presidents and legislators to coordinate on a response
to be a ready-made measure of this concept. Still, it would
to undue judicial activism. To capture the three phases
appear that Importance, as defined above, might capture
of unified-divided government in Mexico between 1997
exactly what makes a particular constitutional question
23In April 2002, the ministers agreed to begin returning amparo ap- more intrinsically important than another. The questions
peals to the benches, an effort designed to leave the full Court free
to consider what the ministers themselves claim raise more impor-
tant questions of constitutional law-constitutional controversies 25The first period ended on September 1, 1997 and the second on
and actions of unconstitutionality. See Acuerdo [Accord] 4/2002, December 1, 2000.
Suprema Corte de Justicia de la Naci6n.
26Partisanship data for the state legislatures and governors
24Preliminary analysis on the internet and inside Mexico at re- may be found at the Website for the Mexican Senate
search university libraries offered little confidence in the reliability (http://www.senado.gob.mx) and in Lujambio (2000).
of electronic searches for articles concerning the Mexican judi-
27These categories include: individual or private business, munic-
ciary. InfoLatina, Lexis-Nexis's Spanish search engine and all utili-
ipality, union, civil or religious association, small political party,
ties maintained by the main national newspapers produced highly
corporation, large political party (PRI, PAN, PRD), university, state
erratic results, especially for the mid 1990s. Accordingly, the best
legislature, state executive, federal commission, federal congress,
strategy appeared to be a daily, full text search. La Jornada main-
state judiciary, federal judiciary, and federal executive. The results
tains a publicly accessible Website that contains issues dating from are robust to various ordinal measures of complainant political
March 29, 1996 to the present. In addition, La Jornada is one of a status.
small number of widely circulated newspapers known for its inde-
pendence (Lawson 2002, 69). 28See supra note 3.

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108 JEFFREYK. STATON

TABLE 3 Determinan

Including Procedural Excluding

Dismissals Procedural Dismissals
Model 1 Model 2

[ RSE P P RSE p
Strike Equation
Importance -.131 .02 <.001 -.120 .02 <.001
Coverage 1.12 .81 .164 1.56 .34 <.001
Importance * Coverage -.367 .27 .178 -.603 .04 <.001
Unified-Pi Government .213 .11 .048 .264 .13 .044
Divided Government .342 .22 .117 .351 .22 .115
Party .082 .09 .362 .078 .08 .323
Complainant Types
Corporation .292 .06 <.001 .251 .07 .001
Large Political Party (PRI, PRD, PAN) .741 .15 <.001 .904 .13 <.001
State Legislature .494 .17 .004 .624 .17 <.001
Federal Executive 7.06 .58 <.001 6.10 .31 <.001
Constant -.910 .042 <.001 -.864 .06 <.001

Press Equation
Strike 1.88 .33 <.001 2.13 .14 <.001
Coverage 2.01 .21 <.001 1.80 .29 <.001
Strike * Coverage -.956 .37 .010 -1.02 .17 <.001
Importance .282 .07 <.001 .325 .05 <.001
G6ngora -.121 .15 .415 -.106 .11 .333
Constant -2.14 .34 <.001 -2.25 .27 <.001
N = 1005 N = 852

p = -.558 p = -.723
X 2 = 6.35 X 2 = 45.68
p =.011 p < .001
Note: Bivariate results displayed with robust standard erro
dummy variables for 14 of the 15 complainant categories. I

the Court addresses cases

ought resolved
to matter during
more Pres
as the le
government challenged otherwise.
and precedent-setting value o
decision increase. They are intrinsically important
tions for exactly the same reason that federal p
officials ought to care more about
Results
the outcomes of
cases. Accordingly, we ought to expect the Supreme
to be more likely to publicize
Table 3 displays its
results decisions asestima-
from two bivariate probit the fe
importance of the tions.increases.
policy Model 1 includes observations on all constitutional
Finally, I control forcases
the resolved by the Supreme G6ngora
Genaro Court between 1997 andPime
regime. The Supreme 2002. Model
Court 2 excludes those
selects its casesown
that the Court dis-
president
among all current members.
missed for Each
procedural default
president
(i.e., the Court didserves
not reach a
year, nonrenewable term. In 1999,
the underlying the
constitutional ministers
issue). There is a fair reason el
G6ngora, and it is popularly assumed
to treat procedural that
dismissals as equivalent to denials,the
as C
public relations Model
activities 1 does. Mexican increasingly
became federal judges have a great deal
aggre
and strategic following of
hisfreedom to find procedural It
election. default
wasin theirunder
cases, and G
that the DCS conducted scholars
its have argued that they
content manipulated theseof
analysis rules in
the
media coverage. In order order
to to reduce
addressthe judicial this
caseload (Rubio, Magaloni,
possibility,
clude a dummy variable and Jaime 1994). On the
G6ngora, other hand, some
which dismissals
is coded 1

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CONSTITUTIONAL REVIEWAND SELECTIVE PROMOTION lo9

would appear to be clearlyThese results

required by provide sup
law, sugges
in a strikingly
that these cases are fundamentally different
different pol
from thos
obvious
which the Court resolved differences
the underlying betwee
constitut
issue.29 Whatever the correct
is a fairly
interpretation
surprising
ofresult.
a pro
essarily
dural dismissal, the estimates and falsify the promot
their significance l
assumed
are nearly identical across the twothat the courts can
models.
The results provide support for its
promoting both the yet
cases, baselin
I ha
and case promotion models
with against the null
press releases. hypo
If press r
media
ses but there is not universal coverage
support (which
for they d
one theoret
media
cal model over the other. coverage
Consider would equat
the Strike cont
decisionthat
Both theoretical models suggest making. In any
federal even
policy im
portance should influence the Court's
motion model isdecisions, an
its potentia
clearly does. In Models something
1 and 2, P1 + 133
the * Covera
baseline mode
If the
the effect of Importance on media coverage
merits is endog
decision, is n
should
tive and significant for both estimate
values a positive
of Coverage, re
sugg
Press, butlikely
ing that the Court is decreasingly that this relation
to strike dow
media
policies as federal importance coverage. This
increases.30 Thatsuggest
said, t
effect
effect of media coverage is moreof Strike) should
consistent be p
with the b
that the effect is attenuated
line model than the promotion model. Indeed, Hi
dicts that P2 + 3 * Importance, the
is already effect the
covering of Cove
conf
support
on the merits decision, should be for H3. The
positive and positive
signific
at relatively low values offor Strike in
Importance both
yet models su
insignifican
failsthe
high values. This is precisely to cover a though
result, conflict, the
the e
fect is stronger in Model is
2. strongly related the
In both models to wheth
effec
quo. The coefficient
Coverage is positive and significant on two
for the first the v
i
and
ues of Importance (the state significant,
law cases), butindicating
the size oft
effect decreases for larger values of
coverage theImportance and
positive relation
insignificant.31' is attenuated, exactly as sug
relationship between Strike
significant when La Jornada
While this statistical resul
29In 2001, the Supreme Court dismissed a municipal challeng
stantive effects
President Fox's decision to expropriate a plot detailed in T
of communal
for the construction of a new mary
airportof
after
theFox reversed
case his dec
promotion
and the cause of action ceased to exist. Clearly is not a dism
of the table, where La Jorn
that should be treated like a denial of the underlying constituti
claim. case. Whatever the importan
officials, the Court is unlike
30The coefficients and standard errors of this effect when Coverage
is 0 are given in the table. When Coverage is 1 the effect is -.50 in which it upholds the law un
Model 1 and -.72 in Model 2, with standard errors of .28 and .07 the direction of the merits
respectively, statistically significant effects at the .10 and .05 levels,
ability terrifically. Indeed, t
respectively. We might also study the Court's potentially strategic
decisions by asking whether it was particularly likely to uphold importance for which the p
important PRI-affiliated laws during the period of unified federal 750%. This is consistent with
government. Given the theoretical relationship between Coverage order to ensure compliance w
and Strike this involves estimating a quadruple interaction term
cover the resolution.
and 10 constituent interaction terms. Unfortunately the correlation
between the various interaction terms was too great to estimate Now consider the right h
simultaneously the parameters. That said, a simple check of the Jornada has already been co
data suggests that the Court struck down 0 of 14 PRI-affiliated
of policy importance, the Co
policies during this period. While this is generally consistent with
the model, it is impossible to test this theory econometrically with press release, consistent with
the existing data. accurate coverage of its opin
31In both models, the marginal effect of Coverage when Importance to cover the resolution; how
is 0 and its statistical significance are given by the coefficient of in the probability of the Co
Coverage in Table 3. In Model 1, when Importance is 3, this effect is
-.02 and the standard error of that effect is .19, far from significant. 32In Model 1 the effect of Strike when Coverage is 1 is .93 with a
Similarly, in Model 2, when Importance is 3 the effect of Coverage standard error of .54. In Model 2, the effect is 1.12 with a standard
is -.25 with a standard error of .34. error of.12.

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 110 JEFFREYK. STATON

TABLE 4 Predicte
by Federal Polic

No Prior Coverage Prior Coverage

Policy Policy Policy % Policy Policy %

Importance Upheld Struck Change Upheld Struck Change
Low Importancea .01 .35 3,400 .40 .75 88
Medium Importanceb .04 .57 1,325 .62 .89 44
High Importancec .08 .68 750 .72 .94 31
Note: Predicted probabilities of a press release based on Model 1 in
of the Court striking down a public policy for selected values of Imp
during the G6ngora regime. The third column of each half of
probability of issuing a press release caused by changing the Cour
aAmparo against a state law.
bAmparo against a federal law.
CConstitutional controversy or action of unconstitutionality again

associated with a change in the merits

stitutional review.decision isthe
It suggests that moder-
decisions of consti-
tutional This
ate; it is never greater than 88%. judges tolargely
promote their cases are endogenous
reflects the to
higher predicted probabilities
constitutional
in the fourthpolitics. This column,
theory has twobut
specific im-
plications for
it also clearly makes the substantive constitutional
point. Therereview.
isFirst, we should ob-
always
serve constitutional
an incentive to publicize in order to ensure judges engaging in cov-
accurate strategic public
relations.
erage when the media is likely to coverI find empirical support for this implication
the resolution, but in
Mexico from
when the media is not, the merits 1997 to 2002,
decision is where the Mexican Supreme
a powerful
Court's
predictor of whether the court choices to publicize
publicizes, its cases were be-
precisely intimately tied
to whether
cause these are the decisions for whichit chose to strike down
public public policies
support is or not.
most helpful. Indeed, the Court publicized decisions striking down im-
I conclude by noting that portant
the federal
results
policiesprovide some
with near certainty. The second
support for the control variables suggested
implication by
is that the ability to the litera-
influence public informa-
tionidentity
ture. In the first equation, the through case promotion
of the should break the connection
complainant
clearly appears to influencebetween judicial making.
decision uncertainty about public information
Corpora-
and decision
tions, large political parties, state making predicted
legislatures, andby Vanberg's
the fed- model. I find
eral executive were all more successful than individuals. In support
less support for this claim, but continue to find
for Vanberg's approach,
addition, the measures of unified-divided which underscoresare
government the impor-
both positive, suggesting thattance
the of Court
information for judicial
was more power.
aggres-
sive in the periods of partially This article suggests
divided and broader
fullyimplications
divided for demo-
cratic than
government (under Vicente Fox) governance.
it Judicial public relations
was during thesuggests a
route
period of unified government. through which judges can
Interestingly, increase is
Party their authority
not
significant in either model, undermining the
(Widner 2001 ) by creating notion
accurate that where
media attention
the Court was in some wayappropriate.
specially attached
Still, the model suggeststhe PRI.
that the effectiveness
Turning to the second equation, the
of judicial probability
public ofAs
relations is limited. a I press
discuss above,
release being issued increased public
with relations strategies
federal for resolving
policy impor-noncompliance
tance. This result is consistent with the Court's account of problems are limited by the importance officials assign
its press releases. Finally, it does not appear that Genaro to the policies under review, and the ability to resolve re-
G6ngora was more likely than his predecessor to push the porter inaccuracy is undermined by the generalized costs
DCS to issue a press release. of promoting cases. Further, knowing that judges behave
as if public relations works and knowing that public rela-
tions actuallyworks are two distinct matters. As a first step,
Conclusion scholars might ask whether judges are generally capable of
influencing the quantity and quality of their media cover-
This article develops a theory of judicial public relations
age. If the kinds of cases judges promote are the same cases
embedded within a separation of powers model of con-to be covered absent judicial intervention, selectively
likely

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CONSTITUTIONAL REVIEWAND SELECTIVE PROMOTION 111

Therenot
promoting case results may are two possible
increase cases to consider.
theEither Ac <
probab
0 (the court
that a particular resolution is likes the status quo) or
covered. OfAc > 0course,
(the court likes ev
the alternative).
judges are only publicizing inherently Whatever the value of Ac, if the executive st
newsworthy
plays (Defy,
going public clearly affords Defy), the the
them court plays Uphold because -pE >
opportunity t
their own spin on their -pE - C. This establishes that the strategy profiles in
resolutions.
Cases 1 and 3related
I close by noting a caveat in Table 1 are SPE.
to Also,judicial
if Ac < 0, the court
pub
relations, one perhaps will
recognized
play Uphold even if the by John
executive Marsh
plays (Comply, Defy),
because p(C + Ac
the early nineteenth century. - E) - C < -pE,
When which establishes g
presidents
Case 2.
the heads of legislators and take their interests dire
to the voters, they do what comes
Finally, if Ac > 0 andnaturally to succ
the executive plays (Comply,
ful politicians (KernellDefy),
1992,the court's2-6).
strategy depends on p because p(C +
In contrast, j
Ac - ability
are not selected for their E) - C may be larger
to or smaller than -pE. For p >inf
successfully
mass opinion. Indeed, the legitimacy of unelected ju
C the court will play (Strike Down); if p < CAc'
the court
is presumed to depend on theirwill play (Uphold). This establishes
isolation from Casesdaily
4A
and 4B.
litical life. In light of this difference between a judge
politician, judges likely face an important tradeoff
considering whether to pursue public
Promotion Model relations,
herently political activity. While they may obtain b
Here I wish
fits from influencing their to establishcoverage,
media the claims made in Table
they 2. Con- ma
generating an image ofsider
athe executive's choices first. court.
politicized As before, the execu-
It is n
worthy that Marshall'stive defies all decisions
essays if AE > B. This isthe
following the strategy
McC
resolution were published under
(Defy, .... ,Defy) in Cases 1 a pseudonym.
and 3. If AE < B the executive
this was the norm forcomplies
much political
with decisions covered by thecommenta
media and defies
those decisions the Marshall's
the early nineteenth century, media ignores. This is (Comply,
choice Defy, to
lish anonymously surely must
Comply, have
Defy) in Cases 2 and 4.appeared obvi
The court's expected util-
a man so interested in ities
developing an
if it plays Uphold or Strike image
Down (i.e., it does notof
pro- an
mote) aremodern
litical federal bench. How identical to those incourts
the baseline model. If the
navigat
trade-off between publicity and
court plays ( Uphold politicization
and Promote) it expects -K, the cost of m
promotion.
a critical determinant of the If the court plays (Strike Down andwith
aggressiveness Promote) w
and the executive
judges pursue their interests and playsby
(Comply, Defy, Comply, Defy), the
implication the
gree to which judges arecourt
ableexpects
toAc -build
K. If the court plays (Strike
their Down
institut
strength. and Promote) and the executive plays (Defy, .. ., Defy),
the court expects -C - K.
Again, there are two possible cases to consider: Ac <
0 or Ac > 0. Begin by assuming that AC < 0. In such a
Appendix case, we already know that the court will not play (Strike
Baseline Model Down) because it always does better with (Uphold) for the
reasons given above; however, it is also clear that the court
will never strike down and promote because upholding
The solution concept is subgame perfect equilibrium.
Consider the executive's choice in the baseline model first.
and promoting is always better if Ac < 0. This is because
If AE > B, the executive always defies the court. This is-K > -K + Ac when Ac < 0. Thus, the only question
is whether the court will play (Uphold) or (Uphold and
the strategy (Defy, Defy) in Cases 1 and 3. If AE < B, the
executive complies if the media has covered the case andPromote). This requires asking when -K > -pE. Solving
for p indicates that the court will uphold and promote if
defies if the media has not. This is the strategy in (Comply,
Defy) in Cases 2 and 4. and only if p > . This establishes the results in Cases 1A,
Next consider the court's expected payoffs given the
1B and 2A, 2B in Table 3.
executive's strategy. The expected utility of upholding the Now consider Ac > 0. If the executive plays
status quo is -pE, whatever the executive's strategy. If the
(Defy,.... Defy), striking down is never better than up-
holding for the reason given, in the baseline model. Sim-
executive plays (Comply, Defy), the court's expected utility
of striking down the status quo is p(C + Ac - E) - ilarly,
C. striking down and promoting is never better than
upholding and promoting. If the court plays (Strike Down
If the executive plays (Defy, Defy), the court's expected
utility of striking down the status quo is -pE - C. and Promote) in this case it gets -C - K and it could get

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 112 JEFFREYK. STATON

-K by upholding and
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Court-Executive Relations in Argentina Under Dictator-
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