Constitutional courts as veto players: Divorce and decrees in Italy

Abstract

This article argues that constitutional courts in Western European parliamentary systems should be integrated into discussions of how public policies are changed, rather than being viewed as an external veto point. It attempts to bridge a gap between a judicial politics literature that focuses on the micro-level of individual judges' votes and comparative scholarship that operates at the macro-level. A model for viewing constitutional courts as veto players, as a third institutional actor, is proposed and is then illustrated using the cases of legalizing divorce and blocking the executive reissuing decree laws in Italy. The model considers both the indirect and direct influences that constitutional courts can exert on the policy-making process. It also facilitates understanding and explaining the role of courts, as well as legislatures and executives, in conducting the interactions and bargaining that result in policy change.

The Electoral Connection: How the Pivotal Judge Affects Oppositional Success at European Constitutional Courts

“…Usually, the role of constitutional courts in comparative politics is described as 'third chambers' (Stone 1992), 'veto players' (Volcansek 2001;Tsebelis 2002;Brouard 2009) or they are regarded as elements of consensus democracies (Lijphart 1999). These concepts rely on the implicit assumption that courts and judges can be treated as political actors.…”

“…While there has recently been a small boom in research about the interaction between governments, courts and oppositions (Stone 1992;Stone Sweet 1998, 2000Vanberg 1998aVanberg , 1998bVanberg , 2005Volcansek 2000Volcansek , 2001, research on the selection process (Epstein et al 2001b) and individual decision-making processes of judges (Magalha˜es 2003) at European courts are extremely rare. We know little about this Black Box due to the fact that most European courts do not report individual judges' votes.…”

Legislative output and the Constitutional Court in Italy

“…More recently, Volcansek (2001) has argued that constitutional courts with the power of constitutional review can have either an indirect influence on the legislative process (i.e. through the politicians' anticipated reactions of the Court's moves) or a direct influence on it (i.e.…”

“…through the power of invalidating a law). Volcansek (2001) sees the Court as an additional veto player, 1 Over the 1956-1965 period, the Camera dei Deputati approved on average each year 261.5 government-sponsored laws-of which 68.5% were passed by committees; over the 1986-1995 period, the yearly average fell to 174.3 laws-of which 27.2% were approved by committees, see Newell (2000: 13-14), and Giuliani (1997: 87-88). 2 Either one fifth of a committee's members, or the government's representative in the committee, or one tenth of the members of a house of Parliament can stop the decentralised law-making procedure, in which case the bill concerned is referred back to the plenary session.…”

Bargaining Constitutional Design in Italy: Judicial Review as Political Insurance

“…In the case of judicial review, if politicians choose to delegate that authority to a Constitutional Design and Judicial Review in Italy 281 judiciary, they are also implicitly giving the judiciary the authority to veto parliamentary enactments (Taylor 2006;Volcansek 2001). More and more countries have made that decision.…”