Professor’s new book examines public perceptions of independent courts

UNIVERSITY PARK, Pa. — Want to get a sense of a country’s commitment to democratic principles? Look to its courts, suggests Michael J. Nelson, professor and head of the Department of Political Science in Penn State’s College of the Liberal Arts.

That’s the focus of Nelson’s latest book, “The Efficacy of Judicial Review: The Rule of Law and the Promise of Independent Courts,” co-written with Amanda Driscoll, professor of political science at Florida State University, and Jay N. Krehbiel, associate professor of political science at the University at Buffalo. Published by Cambridge University Press, the book examines the conditions under which the public holds presidents and prime ministers who ignore court decisions accountable, and what that means for the rule of law and overall democratic health of the country in question.

Drawing on data from respondents in the United States, Germany, Poland and Hungary, Nelson and his co-authors find that executives tend to only face pushback from citizens who value the rule of law and “truly independent courts,” he said.

“What we found is that courts are not these superheroes,” Nelson said. “You need a public that really trusts that court as independent, as well as individual people who are committed to the idea of the rule of law.”

The project started in the early days of the COVID-19 pandemic, when Nelson, Driscoll and Krehbiel received a U.S. National Science Foundation grant to examine if the public’s support for the rule of law would change as a result of the pandemic.

Nelson and his fellow researchers started by surveying Germans and Americans, given both countries have reputations for strong independent courts. From there, they expanded their study to include citizens in Poland and Hungary, since both countries in recent years have had issues with democratic backsliding and maintaining the integrity of their judicial systems.

“With a public health emergency like COVID, every country had to figure out how to deal with it at the same time,” Nelson said. “Like vaccine development, which by law needs to go through all these safety tests. But there are reasons where you might be willing to let the executive — the president or prime minister— ignore the law to push the vaccine through. A number of these challenges made their way to the courts, and there were rulings that were ambiguous as to whether executives had the authority to do this or not.”

The authors zeroed in specifically on the countries’ supreme court decisions related to COVID. They soon realized they might have a bigger project at hand, one that looked at how the commitment to independent courts had evolved in democratic countries since flourishing in the years following World War II.

“One way to shore up our commitment to the rule of law is to have a really strong constitutional court,” Nelson said. “More and more, though, as we’ve gotten more of these powerful courts globally, executives have figured out that they’re not always great to have around because they tell you no. And the point of an independent court is that you’re supposed to follow their rulings. We know that presidents and prime ministers are supposed to listen to courts. What we don’t know is what happens when they don’t. That’s what the book became.”

A big problem with studying the rule of law, Nelson said, is that most survey respondents feel obligated to say they’re in favor of it. But when given scenarios regarding COVID vaccines, such as, “The president approving the vaccine would be in violation of the laws about vaccine approval, but it would get people the vaccines quicker,” it created a real tradeoff for respondents that helped arrive at a better indication of someone’s support, he said.

Across all four countries, support for the rule of law was very high, Nelson said. Where he and his co-authors saw differences was when questions like “If there’s an emergency, does the president/prime minister have to do what the court says?” were posed.

Respondents in the U.S. and Germany tended to come down on the side of courts if they ruled against the actions of the president or prime minister, Nelson said. However, in every experiment in Poland and Hungary — where trust in the judicial independence is low — there was no difference in how people feel about these policies whether the court ruled in favor of or against the executive’s order.

“People often struggle to know whether a court declaring something unconstitutional is offering a genuine legal judgment or simply doing what courts are expected to do,” Nelson said. “We also sometimes imagine that when courts sign off on presidential actions, it could make the public more supportive of those actions. That possibility matters a lot in an era of global democratic backsliding, where one of the first moves executives often make is to capture the courts. If leaders can then use those courts to legitimize their policies, that becomes a powerful tool. But what we show in the book is that presidents don’t really earn bonus points for obeying the law — judicial approval doesn’t meaningfully increase public support for controversial policies.”

Nelson and his co-authors are currently conducting follow-up experiments with American respondents to gauge opinion on recent court rulings that have pushed back against some of the Trump administration’s executive orders. In the months ahead, the U.S. Supreme Court will rule on several issues, including tariffs and immigration.

“The American public, through COVID and up through when we submitted the book, is highly and uniformly committed to the rule of law,” said Nelson, noting that more recent preliminary survey data indicates that such commitment might now be polarized by party. “But up to last summer, Democrats and Republicans were equally committed to it — which is a nice finding, because we hear so much about division, but there is commonality on that.”

In any case, Nelson said, it’s vital to continue bolstering efforts to defend independent courts against politicization and educating the public about the importance of the rule of law.

“Our takeaway is, the courts work, but they don’t work on their own,” he said. “Where people need to be conscious is where the court’s independence can get eroded. As soon as that’s gone, the result is that it doesn’t matter if the court acts, because it’s ineffective — even among those who say they’re committed to the rule of law.”