Strategic Delay and the Use of Incompatibility Rulings at the German Constitutional Court

Abstract

Constitutional review has become a hallmark of modern liberal democracy. The efficacy of this review, however, is far from guaranteed. In this article, I argue that courts enhance judicial authority by using discretion over the temporal effect of decisions invalidating legislation. Building on the comparative judicial politics literature on the separation of powers and strategic judicial behavior, I develop a theoretical account of how courts strategically delay the implementation of their decisions through the declaration of a statute’s incompatibility with the constitution. The accompanying theoretical model’s main prediction is that courts use this tactic when the incumbent government is electorally weak, as delaying compliance raises the probability of a new government taking office and subsequently implementing the decision. An empirical analysis of incompatibility rulings by the German Federal Constitutional Court supports the model’s predictions.

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