Editor’s note: The following is a guest post by Mert Moral and Efe Tokdemir for their forthcoming article in the International Political Science Review entitled, “Justices ‘en Garde’: ideological determinants of the dissolution of anti-establishment parties”. Mert is currently a doctoral candidate in political science at Binghamton University. Efe is a doctoral candidate in political science at Binghamton University and is currently a visiting scholar at the Mershon Center for International Security Studies at the Ohio State University.
The Constitutional Court of Turkey (CCT), the counterpart of the Supreme Court in the U.S., has long been an influential actor in Turkish politics. For instance, in 2008—only four months after the conservative Justice and Development Party’s (AKP) first re-election with 47% of the popular votes—the Court decided that the party was the “focal point of non-secular activities” undermining the principle of secularism, but voted against its dissolution with 6 votes for and 5 votes against.
The AKP case is one of many in which a political party with high electoral support was accused of violating the constitution’s main principles: secularism and territorial integrity. Ten years earlier, for instance, the Court had dissolved the AKP’s predecessor (the Welfare Party) and banned its leaders from politics including the former prime minister of Turkey for violating the secularism principle. In fact, a total of 27 political parties were dissolved by the CCT to date. We believe this very high figure merits the attention of the students of comparative judicial politics.
In our recently published article, we examine justice- and party-level determinants of party dissolution decisions to understand how and to what extent high Courts can indirectly overrule public choice by limiting the representation of diverse political ideologies. We suggest that when political parties with anti-establishment ideologies constitute a prominent threat to the regime, justices `en garde’ take a pro-status quo stance and vote for their dissolution. To test this claim, we focus on Turkey, a country that has experienced frequent interruptions to its democracy and where the CCT was founded by the military junta that put forth the derailment of the regime from the founding principles as the basis of the coup in 1961.
To our knowledge, our study is the first empirical assessment of how ideological dispositions of individual justices of the CCT influence their decisions. Since some other high courts in Europe have also attempted to curb anti-establishment ideologies in the last decades (including but not limited to the well-known Spanish and Greek examples), our findings have broader implications and would be of interest to those interested in democratization, political parties, and representation as well.
Justices’ Decisions: Attitudinal Model vs. Legal Model
American judicial politics literature has long suggested that justices can base their decisions on their own interpretations of legal norms and cases, which by nature are subjective given the lack of precision in legal texts, the difficulty of identifying intent, and the existence of multiple precedents pertinent to a single issue. Gibson (1983: 9) indeed suggests “(justices’) decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive feasible to do.” Of course, this proposition does not imply that the so-called legal model cannot explain the decisions of the Court, but rather that other factors (e.g., attitudes) may also be influential in judicial decision-making.
In many countries, there is no formal mechanism for reviewing the decisions of high courts, which implies that justices are unconstrained in their decision-making (Epstein et al., 2001). Moreover, as high court justices are appointed for long or even for lifetime terms, they often do not have electoral accountability or re-election concerns (Segal and Spaeth, 2002). Based on the Roman law tradition and the French–Swiss civil code, there is no doubt that the Turkish legal system dictates that justices must abide by the positive legal commands of the law- and the constitution-makers. Yet, such restrictions do not necessarily impede justices’ willingness to play an active political role. Along with the broad jurisdiction of the Court extending to other domains, the power to dissolve political parties paves the way for the justices of the CCT to intervene in the political sphere.
High Courts as a Political Instrument in Defining Borders
We contend that the high courts, as in the case of CCT, use their constitutional power to determine the “legal and legitimate borders” of the political scene. Although public choice cannot be restricted in democratic regimes, one way to suppress anti-establishment policy demands can be through manipulating the supply of anti-establishment ideologies. First, party dissolution is considered legitimate on legal grounds for a majority of the mass public compared to putting barriers in front of all new entrant parties. Second, although new parties with extreme ideologies may succeed in overcoming various financial and institutional restrictions, regulating the supply of political parties through the Court decisions provides political elites with an unchallengeable means to restrict the supply of anti-establishment ideologies.
In these regards, we suggest that the CCT functions as both a preventive and a pre-emptive instrument in shaping and re-shaping politics. Compared to mainstream political parties representing the dominant ideologies in Turkish politics, communist, ethnic, sectarian, and religious parties representing traditional cleavage groups are more likely to be targeted by political elites, as they challenge the very foundations of the regime. We expect justices to react proactively and dissolve such parties based on the alleged threat that their very existence represents. Moreover, to the extent that anti-establishment parties garner high electoral support, and thereby, threaten the status quo, the Court can intervene in the political sphere as a regulator. In such circumstances, we expect justices sharing the ideological dispositions of the founding and ruling elites of the regime to act in concert to constrain public choice. We, therefore, hypothesize that anti-establishment parties with considerable electoral support are more likely to be dissolved by justices with conservative and pro-status quo ideologies.
We compiled a comprehensive dataset consisting of 2,870 cases along with educational and professional backgrounds of 85 CCT justices who have served during the period between the enactment of the Constitution of 1982 and 2011 indicating the last party dissolution case in our sample.
Our dependent variable, vote for dissolution or prohibition of individual members of the parliament from politics, is coded from the official website of the CCT. While we were able to code whether the political party taking the case to the Court was right- or left-wing based on the Comparative Manifesto Project dataset in only 329 cases, we estimated two-dimensional w-nominate ideal points using a larger set of 726 judicial review decisions in the same period.
Using those two measures of justice ideology and other independent variables of theoretical interest including parliament’s and the defendant party’s ideologies along with a number of controls, we found that the ideologies of the justices of the CCT and the defendant political parties play an important role in party dissolution cases. That is, activist and pro-status quo justices act to guard the regime against anti-establishment ideologies. Moreover, justices are almost twice as likely to vote for dissolution if an anti-establishment party from communist, conservative, and ethnic party families is represented in the Parliament, and thus constitutes a prominent threat to the status quo.
The figure below is a graphical presentation of our major findings. While the first (w-nominate) dimension shows justices’ ideal point estimates on the liberal-conservative dimension, the second dimension that we labeled as activist (anti-status quo)-restrainist (pro-status quo) accounts for whether justices adopt an interventionist stance. The figure shows that that activist and conservative justices are more likely to vote for the dissolution of political parties. In fact, such probability becomes significantly higher when the party facing the dissolution trial represents an anti-establishment ideologies, such as those from communist, ethnic/sectarian, and conservative party families as our comparison between fringe (with no identifiable ideology) and ethnic parties demonstrates.
Our study relaxes the implicit assumption of uniformity in justice behavior in the previous literature on party dissolution cases in Turkey and takes into account the ideological stances of individual justices and defendant political parties. By modeling the effects of justices’ ideologies conditional on defendant party ideologies, we were able to determine whether justices’ ideologies influence their decisions in dissolution cases against parties representing salient cleavage groups in Turkey. Moreover, we demonstrated that anti-establishment political parties with considerable electoral support and representation in the Parliament are more likely to be dissolved by justices who have conservative and pro-status quo stances.
We believe that our findings are worthy of further discussion. Being the first individual-level study on the Constitutional Court of Turkey, the original dataset we compiled should be of interest to the students of judicial politics in Turkey and in other civil law countries from a comparative perspective. We also call attention to party dissolution cases as an important means of judicial influence on politics. Albeit a rare phenomenon, party dissolution is not limited to Turkey. In other European democracies with civil law, thus less likely than the US to provide justices with room for political maneuvering, High Courts may still limit the representation of salient cleavage groups through party dissolutions and other means such as denying state funding to political parties. In these regards, we hope our study provokes interest in the scholarly community working on other democracies with similar levels of judicial activism and contributes to our understanding of how high Courts influence the public choice by constraining substantive representation.