An Agent-Based Model of Judicial Power

Abstract

The formal fact that a court possesses the power of constitutional review is no guarantee that its decisions will be obeyed. Courts are occasionally defied and they can also be attacked in retaliation for decisions that frustrate the goals of political elites. Despite such threats to judicial authority, some courts do become very powerful. How does this happen? This article presents an original agent-based model – a type of computer simulation – to explore how constitutional courts can act strategically to build their power. Several stylised decision heuristics are analysed, looking specifically at how each might help a court to influence law and policy and avoid retaliation. Of the various approaches modelled here, the best heuristic for these purposes is one that avoids invalidating law and policy in high salience cases. More generally, the simulations vindicate the intuition that judicial power is best built by way of incremental 'baby steps'.