Judicial Politics in Unconsolidated Democracies: An Empirical Analysis of the Ecuadorian Constitutional Court (2008–2016)

Abstract

In this article, we test the extent to which decisions by the Ecuadorian Constitutional Court (ECC) are predicted by non-legal variables. Our theoretical argument proposes that not only the presence of public actors as plaintiffs—especially those working for the executive branch—but also political salience, i.e., the degree of importance attributed to a case by the government and public opinion, plays a crucial role in explaining the outcome of judicial decisions. Original data on all abstract review decisions issued by the ECC (2008–2016) is used to test our argument. We control for possible selection effects, incorporating a novel measure of the overall quality of argumentation and strength of cases brought before the ECC by both public and private parties, in the form of an expert survey. Consistent with our argument, the results show that even when controlling for a wide range of potential confounders, norms are more likely to be struck down by the ECC when (1) public officials claim unconstitutionality than when non-public parties do, and (2) cases are reported by media. In the light of the Ecuadorian case, we conclude that the formally powerful ECC is quite sensitive to governmental influence, even under an improved situation of de jure judicial protections.