Strategic delegation and “judicial couples” in the Italian Constitutional Court

International Review of Law and Economics 32 (2012) 215–223

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International Review of Law and Economics

Strategic delegation and “judicial couples” in the Italian Constitutional Court夽 Fabio Padovano a,b,∗ , Nadia Fiorino c a

CREM-CNRS et Centre Condorcet for Political Economy, Université Rennes 1, Rennes, France DIPES, Università Roma Tre, Roma, Italy c Dipartimento di Sistemi e Istituzioni per l’Economia, Università degli Studi de L’Aquila, L’Aquila, Italy b

a r t i c l e

i n f o

Article history: Received 10 December 2010 Received in revised form 4 January 2012 Accepted 4 January 2012 JEL classification: D72 H1 Keywords: Constitutional Court Agenda setting Delegation Judicial independence

a b s t r a c t We analyze the selection of the Justice Reporter by the Justice President of the Italian Constitutional Court, the most important form of agenda setting power and act of delegation in decisions of constitutional (il)legitimacy. We estimate a series of econometric models that evaluate the relative importance of the determinants of the creation of these “judicial couples”, namely, professional background, political affiliation, age, etc. Professional background is shown to be an important determinant of the creation of the couples, more so with time, although the onset of the Second Republic has reduced its importance. This analysis sheds light into the inner workings of the Italian Constitutional Court and the actual processes through which its jurisprudence is generated. © 2012 Elsevier Inc. All rights reserved.

1. Introduction This paper examines what is probably the most important act of delegation of the Justice President of the Italian Constitutional Court in the cases of constitutional (il)legitimacy: the appointment of a “Justice Reporter” to chair the panel of justices that actually decides about the case. This area of jurisprudence is very sensitive in terms of checks and balances with the other government branches, because decisions of constitutional illegitimacy directly negate formal acts implemented by the executive and the legislative. The selection of the Justice Reporter is the most effective tool in the hands of the Justice President to influence the final decision of the Court in cases of constitutional (il)legitimacy1 (Cerri, 2004; Zagrebelsky, 1997). That because the Justice Reporter instructs the

夽 Paper presented at the 2010 EALE Conference. We thank two anonymous referees, SimonaBenedettini, NunoGaroupa, Francesco Lagona, Stefano Lombardo, Antonio Nicita, Francesco Parisi and Stefan Voigt for helpful comments on previous versions of this paper. The usual caveat applies. ∗ Corresponding author at: CREM-CNRS et Condorcet Center for Political Economy, 7 Place Hoche, CS 86514, 35065 Rennes Cedex, France. E-mail address: [email protected] (F. Padovano). 1 In principle the Justice President can appoint himself as Reporter. His multiple responsibilities and the need to maintain good relations with his fellow justices has led the Justice President to almost always delegate the role of Reporter to other justices. In our sample, the coincidence between Justice President and Justice Reporter occurs in less than 2% of the cases. 0144-8188/$ – see front matter © 2012 Elsevier Inc. All rights reserved. doi:10.1016/j.irle.2012.01.002

case, chairs the panel in all its meetings and in fact writes the final decision of the panel about the case. Thanks to these powers the Justice Reporter exerts a great influence on the Court’s final decision, as the historians of the Italian Constitutional Court unanimously point out (Cerri, 2004; Rodotà, 1999; Zagrebelsky, 1997). Furthermore, these studies point out that there have been very few cases, and possibly none, where the Justice Reporter dissented from the decision of the Court about a case he instructed.2 On the other hand, the other justices members of the panels can, and did in fact, in a variety of ways, manifest their dissenting opinions (Fiorino, Padovano, & Sgarra, 2007). The delegation of the chairmanship of the panel to a similarly minded Justice Reporter is then the most powerful way for the Justice President to make sure that each case be decided according to his preferences. Hence the interest to examining the determinants of the choice of the Justice Reporter by the Justice President – in the jargon of the Italian Constitutional Court, the creation of a “judicial couple”. To perform this analysis we exploit a dataset about all the decisions of constitutional (il)legitimacy taken by the Italian Constitutional Court from 1956 till 2002, precisely 2259 cases. This dataset contains information about the personal characteristics of all the 238 Justices of the Italian Constitutional Court:

2 There are rumors of disagreements between Justice President Ruperto and Justice Reporter Santosuosso at the beginning of the 2000s which, if confirmed, would amount to 3 decisions out of 2259 considered. More generally, there has never been a case of a Justice Reporter resigning from his position.

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professional background, personal ideology and/or political affiliation, age, career after the expiration of the Court mandate. Simple descriptive statistics reveal that the choices of Justice Reporters by the Justice President are not randomly distributed, as each Justice President tends to select some Justice Reporters with higher frequency than a purely random one. This is first evidence that there are indeed “judicial couples”. The hypotheses about the selection criteria of the Justice Reporter by each Justice President are drawn from the empirical law and economics and public choice literature on the Italian Constitutional Courts (Fiorino & Padovano, 2010; Fiorino et al., 2007; Santoni and Zucchini, 2004) and other Kelsenian Courts3 (Amaral Garcia, Garoupa, & Grembi, 2009; Franck, 2009; Garoupa, Gomez Pomar, & Grembi, forthcoming; Garoupa, Grembi, & Lin, 2011; Kelsen, 1942). Specifically we verify whether, and to what extent, these choices are affected by the similarity of professional background, age and political affiliation between the Justice President and the Justice Reporters of his choice. The examination of the inner workings of the Italian Constitutional Court helps also to better understand, and predict, the jurisprudence of the Court itself. Furthermore, the review of the literature indicates that this is the first formal empirical analysis of issues of delegation within a supreme judicial institution. The rest of the paper is organized as follows. Section 2 reviews the literature. The dataset, the variables and the methodology of the analysis are described in Section 3. In Section 4 we discuss the results of the econometric estimates, while Section 5 summarizes the conclusions of the analysis. Appendix A describes the main institutional characteristics and the functioning of the Italian Constitutional Court. 2. Literature review There are very few works that deal with the selection of Justice Reporters, or institutionally equivalent agents, in Supreme or Kelsenian Courts. The only study about a similar matter to adopt a rational choice perspective is Epstein and Knight (1998), which describes issues of delegation in the internal relationships within the US Supreme Court. Yet, they provide no formal empirical testing of the conclusions of the analysis. The analytical empirical literature of law and economics and public choice applied to the judicial branch have examined a variety of loosely related issues, such as the probability of obtaining decisions of constitutional illegitimacy (Amaral Garcia et al., 2009, about the Portuguese Constitutional Court; Garoupa et al., 2011, about the Taiwanese one; Garoupa et al., forthcoming, about the Spanish Constitutional Court; and Franck, 2009, about the French one); the determinants of judicial independence (Anderson, Shughart, & Tollison, 1989; Cohen, 1992; Segal & Spaeth, 2002; Toma, 1991 about the US Supreme Court; Ramseyer & Rasmusen, 1997, 1999, 2001a, 2001b about the Japanese judiciary; Hayo & Voigt, 2007, about a cross country of 76 judicial systems); the career pattern of judges (Fiorino & Padovano, 2010, about the Italian Constitutional judges; Salzeberger & Fenn, 1999, about the British Court of Appeal; Maitra & Smyth, 2004, about the New Zealand High Court), as well as others. It therefore seems that strategic delegation within a judicial institution has never received formal empirical testing.

3 The Kelsenian model was first theorized by Kelsen (1942) who proposed a view of the Constitutional Court as “negative legislator”. The idea is that the Constitutional Court stops legislation from entering the legal system, hence it shares legislative power with the legislator. In that it is different from the American Supreme Court model, where the power of judicial review has greater latitude. However, most constitutional courts go beyond the original Kelsenian model by exercising more power than a mere “negative legislator”. For this reason we use the terms “Kelsenian” and “Constitutional” Court by and large as synonyms.

Italian constitutional lawyers have indeed discussed issues of delegation within the Italian Constitutional Court (Cerri, 2004; Rodotà, 1999; Zagrebelsky, 1997). Although none of these studies provide a formal model or an empirical test, they are however useful to uncover the details of the institutional setting whereby the selection of the Justice Reporter is made and the customary rules that characterize that choice. It is therefore from this collection of various literature strands, of analytical and non formal studies that we may identify the possible determinants of the choice of a Justice Reporter by the Justice President. As it is explained in greater detail in Appendix A, the Italian Constitutional Court is composed by 15 justices: five are elected by the members of the three highest Courts (the Supreme Court of Cassation, the Council of State and the Court of Audit); five are elected by the two Houses of Parliament (the Chamber of Deputies and the Senate) in joint session; the remaining five are appointed by the President of the Republic (art. 135 of the Italian Constitution). Padovano, Sgarra, and Fiorino (2003) and Fiorino et al. (2007) show that these different career patterns systematically affect the justices’ jurisprudence. This may lead a Justice President coming from, say, the magistracy to prefer selecting Justice Reporters with his same professional background. The same, of course, might hold for Justice Presidents elected by the Parliament and appointed by the President of the Republic. Another factor that may potentially affect the creation of a judicial couple is the similarity in age. First of all, age differences in the Italian Constitutional Court are not trivial: the lowest age of a Justice (calculated at the day the justice swears in) is 40, the maximum 76, with a mean value of 63 and a standard deviation of about 8.5. Furthermore professional background seems to affect also these age differences: as Table 3 indicates, the median age of a Justice elected by the Parliament when he/she swears in is 58, it goes up to 62 for those appointed by the President of the Republic and to 66 for those elected by the Highest Courts. Age might be a factor in the selection of the Justice Reporter for two reasons: first, a Justice Presidents might prefer to delegate to Justice Reporters of his same age cohort because they may share the same cultural background, set of ideas, studies, etc. Second, justices with higher age have been demonstrated to be more independent than younger ones in their jurisprudence (Fiorino et al., 2007; Padovano, 2009, finds a similar result for the Italian Council of State). This is presumably because older justices are less interested in seeking positions within the public sector after the expiration of their Court tenure, which deprives them of an important reason to act in a conciliatory manner toward the government. By this logic, a relatively old Justice President, who believes that a law subject to constitutional review is to be declared unconstitutional, should pick up a relatively older and more independent, Justice Reporter, and vice versa. There is also a large consensus in the theoretical and empirical literature on the Supreme and Kelsenian Courts that the political affiliation and/or the personal ideology of the justice affects his/her jurisprudence (Amaral Garcia et al., 2009; Garoupa et al., forthcoming; Ramseyer & Rasmusen, 2001b; Santoni & Zucchini, 2004; Segal & Cover, 1989; Segal & Spaeth, 2002; Vanberg, 1998, 2005). A Justice President who wants to delegate the decision of a case with a minimum of slack from his preferences should choose a Justice Reporter with his same political affiliation or, more generally, ideology. There might also be a “time to learn” component in the criteria for selecting a Justice Reporter. Justices who served as President in later years of activity of the Court might have learnt from their predecessors the advantages of delegating to a germane, like-minded Justice Reporter and the best ways to identify one. If this is the case, the stability of the judicial couples created by more recent Presidents should be greater than of earlier ones (Rodotà, 1999).

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Table 1 Descriptive statistics.

Mean Median Maximum Minimum Std. dev. Observations

JCOUPLES

AGEDIFF

SAMEORIG

SAMEORIG2

POLAFF

TIMEPRES

SECREP

0.11 0.08 0.01 0.69 0.11 238

3.84 4.00 11.00 −1.00 2.97 238

0.72 1.00 1.00 0.00 0.45 238

0.29 0.00 1.00 0.00 0.46 238

1.49 2.00 4.00 0.00 1.03 238

22.33 24.00 42.00 1.000 11.53 238

0.31 0.00 1.00 0.00 0.46 238

Finally, the political turmoil and institutional changes that characterized Italy at the beginning of the 1990s, generally known as the “Second Republic”,4 did affect the jurisprudence of the Court (Fiorino et al., 2007; Santoni & Zucchini, 2004). The selection strategies of the Justice Reporter might have been influenced as well. Whether this implies a greater or lower stability of the “judicial couples” is theoretically undetermined, and it is left to the empirical analysis to discover. 3. Data, variables and methodology 3.1. Judicial couples To appreciate the relevance and frequency of the phenomenon of the “judicial couples”, we calculate the Herfindahl index of the couples President-Reporter selected by each Justice President. Were the cases distributed randomly, so that all Reporters selected by each President chaired the same number of panels, the value of the index would asymptotically approximately 0. If, otherwise, a President always chose the same Reporter (a situation that actually occurred twice in our sample), the concentration of judicial couples would be maximal and the index would be equal to 1. Graph 1 illustrates the results: a value of 0 is never attained, the minimum being 0.07, the maximum 1 and the mean 0.23. Although easy to visualize, the Herfindahl index presents several shortcomings for the regression analysis of our sample data. First, its specification limits the number of observations to the number of Justice Presidents, only 42 in our case, thus severely constraining the sample size. Second, the Herfindahl index treats the data as continuous variables, whereas in fact ours are categorical – i.e. each observation reveals whether we are confronted with the same judicial couple of the previous case or not. To overcome these two problems we estimate the Shannon–Wiener index for all the judicial couples in our sample (Shannon, 1948), a diversity index especially suited for categorical data. Since we are interested to evaluate how the selection of each Justice Reporter in each case of constitutional illegitimacy affects the probability that the distribution of the judicial couples is a purely random one, i.e. the contribution of each judicial couple to bring H close to/away from Hmax , we adopt the relative Shannon–Wiener Index in our regression analysis. The relative Shannon–Wiener index is calculated as the probability of each couple occurring (pi ln pi ) normalized by the absolute Shannon–Wiener Index (denoted as H ) of the selections made by

the Justice Reporter5 (Shannon, 1948). Thus the specification of our dependent variable is: pi ln pi H

JCOUPLES = −

where the negative sign is introduced to make the ratio always positive, to facilitate the interpretation of the estimated coefficients. 3.2. Justices’ characteristics The covariates that we consider in the model capture similarities of age, professional background, political affiliation and years of activity of the Constitutional Court. AGEDIFF measures the difference (in absolute value) between the age of the Justice President and the Justice Reporter at the time they were sworn into the Italian Constitutional Court. As explained in Section 2, Justice Presidents may prefer to delegate to Justice Reporters of their same age because of greater personal familiarity and similarity in personal independence. Data about the age of the Justices come from Breton and Fraschini (2003) and the website of the Italian Constitutional Court. Two variables capture the similarity in professional background: SAMEORIG is a dummy that equals 1 when both the Justice President and the Justice Reporter come from the same professional background, in the sense that they were both either elected from the Higher Courts (i.e. they are both expression of the magistracy) or both elected by the Parliament or both appointed by the President of the Republic; and 0 if none of these similarities occurs. Alternatively, we use a less discriminating regressor, SAMEORIG2, were the value of 1 indicates that both members of the couple are expression either of the magistracy or of any of the two political branches; and 0 otherwise. Hence, when a judicial couple is composed by, say, a Justice President elected by the Parliament and a Reporter nominated by the President of the Republic, it would take a value of SAMEORIG equal to 0 and a value of SAMEORIG2 equal to 1. Data for these dummies come from Rodotà (1999) and from the website of the Italian Constitutional Court.

5 The absolute index simply measures the information entropy of the distribution of cases; it treats categories (in our case, judicial couples) as symbols and their relative population sizes (the observed frequency of each couple) as the probability. This yields a value for each category-judicial couple, thus a sample size of 238 observations-judicial couples that solves the small sample size shortcomings associated with the Herfindahl index.The absolute Shannon–Wiener Index is specified

S

as follows: H  = − 4 It is customary to refer to Italian politics after 1993 as “Second Republic”, to distinguish it from the “First Republic”, conventionally denoting the political period beginning in 1948 and ending in 1992. At the end of 1992 a series of scandals, generally known as Mani Pulite (“Clean Hands”) basically wiped out the political parties and many political personalities that were at the center stage during the First Republic. In 1993, a popular referendum led to the change of the electoral rule for the national parliament from proportional representation to a mixed plurality rule. No formal change of the Constitution ensued, but the political scenario in 1994 was quite different from that of two years earlier, especially because after 1993 for the first time the Italian politics experienced the alternation in government of two opposing coalitions of parties.

i=1

(pi ln pi ) − (S − 1/2N), where ni is the frequency of category

(judicial couple) i, i.e., the number of cases decided by the judicial couple i; S is the number of categories, namely, the number of judicial couples selected by each Justice President; N is the total number of cases decided under each Presidency; and pi is the relative abundance of each category, calculated as the proportion of cases decided by each judicial couple i to the total number of cases decided under each Presidency: ni /N. It can be shown that for any given number of judicial couples, there is a maximum value possible H , Hmax = ln S that occurs when all judicial couples are present in equal numbers (Shannon, 1948). The second half of the equation is a correction factor. The more the estimated H approaches its maximum value, the greater the entropy of the judicial couples selected by each Justice President, i.e., the more the choice of the Justice Reporter by the Justice President approximates a random one.

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F. Padovano, N. Fiorino / International Review of Law and Economics 32 (2012) 215–223 1 0,9 0,8

Herfindahl index

0,7 0,6 0,5 0,4 0,3 0,2

verzì

volterra

vari

vassalli

spagnoli

santosuosso

saja

sandulli

rossi

ruperto

roehrssen

perassi

pescatore

paladin

papaldo

mortati

oggioni

mirabelli

guizzi

la pergola

granata

gallo

gionfrida

fragali

elia

ferri

de nicola

de stefano

conso

corasaniti

chiarelli

cappi

casavola

branca

caianiello

bonifacio

andrioli

baldassarre

amadei

ambrosini

azzariti

0

borzellino

0,1

Justice President Graph 1. Herfindahl index of judicial couples.

Similarity in political affiliation is captured by POLAFF, a qualitative variable that equals 1 when both Justice President and Justice Reporter come from the same “political area” and 0 otherwise. The political areas considered are four for the so-called First Republic (specifically: Christian Democracy, Communist Party, Socialist and Social Democratic Parties, Republican and Libertarian Parties) and two for the so-called Second Republic (Center-right and Center-left coalitions). Data for this variable come from Breton and Fraschini (2003), the Italian Who’s Who and Wikipedia. Finally, the Italian Constitutional Court has been created in 1956, and we examine its jurisprudence for all the years up to 2002. Fortysix years of activity might have affected the selection procedures of the Justice Reporter in at least two important ways. First, Justice Presidents might have learned the best strategies to delegate to a Reporter by experience. This implies that the optimality and stability of more recent judicial couples should be greater than of older ones. In order to verify this hypothesis, we use the variable TIMEPRES, that orders time wise the Justice Presidents from the first

(Enrico De Nicola in 1956) to the 42nd (Massimo Vari, substituting for Cesare Ruperto in 2002). This variable captures a sort of “institutional learning” of the best strategy to choose the Justice Reporter. Second, the transition from the First to the Second Republic has in fact affected the jurisprudence of the Court (Fiorino et al., 2007; Rodotà, 1999). It might then be the case that the criteria for selecting the Justice Reporter have been influenced as well. To this end, we construct a dummy SECREP that equals 1 if the judicial couple was active after 1993 and 0 before. Tables 1, 2 and 3 show the descriptive statistics at various levels of disaggreagation.

3.3. Empirical model The estimated equation is specified as follows: JCOUPLEi = ˛0 + ˛1 AGEDIFFi + ˛2 SAMEORIGi + ˛3 POLAFFi + ˛4 TIMEPRESi + ˛5 SECREPi + εi

(1)

Table 2 Descriptive statistics. JCOUPLES

AGEDIFF

SAMEORIG

SAMEORIG2

POLAFF

TIMEPRES

SECREP

(a) “Source Pres” Mean Median Maximum Minimum Std. dev. Observations

0.09 0.08 0.02 0.28 0.05 91

3.89 4.00 11.0 −1.00 3.46 91

0.30 0.00 1.00 0.00 0.46 91

1.00 1.00 1.00 1.00 0.00 91

1.51 2.00 3.00 0.00 1.00 91

19.59 22.00 38.00 1.00 11.12 91

0.22 0.00 1.00 0.00 0.42 91

(b) “Source Mag” Mean Median Maximum Minimum Std. dev. Observations

0.17 0.09 0.02 0.69 0.17 67

3.93 4.00 9.00 0.00 2.31 67

0.00 0.00 0.00 0.00 0.00 67

0.00 0.00 0.00 0.00 0.00 67

1.48 1.00 4.00 0.00 1.05 67

28.88 29.00 42.00 6.00 8.88 67

0.40 0.00 1.00 0.00 0.49 67

(c) “Source Parl” Mean Median Maximum Minimum Std. dev. Observations

0.09 0.08 0.01 0.33 0.08 80

3.70 4.50 10.0 0.00 2.90 80

0.54 1.00 1.00 0.00 0.50 80

1.00 1.00 1.00 1.00 0.00 80

1.49 2.00 4.00 0.00 1.06 80

19.96 19.00 39.00 4.00 11.88 80

0.33 0.00 1.00 0.00 0.47 80

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Table 3 List and age of justices by professional background. Parliament

President of the Republic

Higher Courts

Justice

Age

Justice

Age

Justice

Age

Amadei Abrosini Bonifacio Branca Bucciarelli Caiaello Capalozza Cappi Casavola Cassandro Elia Gallo Guizzi Jaeger Malagugini Marini Mezzanotte Mirabelli Onida Reale O. Rocchetti Spagnoli Trimarchi

61 69 40 52 63 54 60 72 55 42 51 68 58 52 62 57 54 49 68 75 63 60 53

Azzariti Andrioli Astuti Baldassarre Capotosti Castelli Avolio Cheli Chiarelli Conso Contri Crisafulli De Nicola Ferrari Ferri La Pergola Mengoni Mortati Neppi Modona Oggioni Paladin Petrocelli Rossi Sandulli Vassalli Volterra Zagrebelski

64 69 63 46 54 61 53 57 60 61 58 78 68 67 47 65 69 58 74 44 64 69 42 76 69 52

Amirante Benedetti Bile Borzellino Chieppa Corasaniti Cosatti De Marco De Stefano Fragali Gabrieli Pantaleo Gionfrida Granata Maccarone Manca Papaldo Pescatore Reale N. Rossano Roehrssen Ruperto Saja Santosuoso Vari Verzi

68 66 70 61 69 61 67 66 57 63 67 64 66 68 70 56 55 67 67 67 68 66 66 66 66

Mean Median Standard dev. Minimum Maximum Observations

58.17 58 8.69 40 75 23

61.08 62 9.53 42 78 26

65.03 66 3.93 55 70 26

Note: The age of the justice at the time they were sworn into the Italian Constitutional Court.

where i denotes the judicial couple. Since the variance of the dependent variable lies between 0 and ∞ and the variable itself is normally distributed (Table 4 reports the results of the Maximum Likelihood test, which fails to reject the null of normality of JCOUPLE), we can estimate Eq. (1) through OLS with Huber–White heteroskedasticity consistent coefficient covariance matrix. It is important to control for heteroskedasticity in our estimates to avoid the risk that errors associated with the choices of two or more reporters by a given president be not independently distributed. This concern becomes relevant in the event where the preferences of the Justice President for Justice Reporters generate a sort of “unified criterion” of selection in a sequence of choices of Reporters by that President. In such a case the hypothesis that the errors terms be independently distributed might be violated. This possibility is however quite remote, because the choices made by the president are constrained by the availability of justices reporters, their specialization, etc., so that the preferences of each President do not Table 4 Empirical distribution test for JCOUPLES. Method: maximum likelihood – corrected for degrees of freedom (exact solution). Parameter

Value

M ˙

−0.107*** (0.05) 0.105*** (0.004)

Log likelihood Mean of dependent variable Standard dev. of dependent variable N

339.107 −0.107 0.105 404

Note: Standard errors in parentheses. * Denote significance at 10% level. ** Denote significance at 5% level. *** Denote significance at 1% level.

entirely drive the choice of the reporter. To be on the safe side, however, we directly control for heteroskedasticity in the estimates by means of White’s heteroskedasticity consistent covariance matrix and report such estimates. 4. Econometric estimates Table 5 reports the estimates of Eq. (1) in four variants: Model 1 distinguishes between justices of presidential, parliamentary and magistracy source, Model 2 adds the division between First and Second Republic; Model 3 uses the less discriminatory distinction between justices of political (parliamentary and presidential) and magistracy election, while model 4 adds again the separation between First and Second Republic. The estimate of Model 1 shows that similarity in professional background is the driving factor in the selection of the Justice Reporter by the Justice President: the coefficient on the SAMEORIG regressor indicates that the expected probability of a Justice President choosing a Reporter with his same background is, at the mean values, 43.2% higher than the average, i.e. the one that would emerge if such choice were entirely random6 . When the periods of the so-called First and Second Republic are considered separately (Model 2), this probability increases by 13%, to 56.3% at the mean value. A possible explanation for such an increase is that, in the more uncertain institutional and political environment

6 For a normally distributed dependent variable Y, the expected probability of a as pEY|X = 1 + (1 − p) discrete regressor X in a model like Y = a + bX + cZ + ε is computed  EY|X = 0; for a continuous variable it is computed as E(Y|X)f(X)dX. Both can be

approximated by estimating the model with and without the variable of interest and then by computing the difference between the two fitted values of Y.

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Table 5 OLS estimates of Eq. (1). Variable Dependent variables: JCOUPLES AGEDIFF SAMEORIG

Model 1

Model 2

Model 3

Model 4

0.0015 (0.002) 0.042** (0.015)

0.0003 (0.002) 0.050*** (0.015)

0.0007 (0.002)

−0.0008 (0.002)

0.066*** (0.016) −0.005 (0.006) −0.0014*** (0.001)

0.086*** (0.015) −0.004 (0.006) 0.03*** (0.001) −0.122*** (0.021)

−0.123*** (0.026)

−0.182*** (0.026)

0.11 8.68*** −1.69 238

0.24 14.47*** −1.82 238

SAMEORIG2

CONSTANT

−0.074*** (0.021)

−0.006 (0.006) 0.011 (0.001) −0.103*** (0.022) −0.11*** (0.021)

Adj. R2 F-statistic AIC N

0.17 6.076*** 1.66 238

0.16 9.874*** −1.74 238

POLAFF TIMEPRES

−0.006 (0.006) −0.02*** (0.001)

SECREP

Note: Robust standard errors in parentheses. * Denote significance at 10% level. ** Denote significance at 5% level. *** Denote significance at 1% level.

where the Court found itself to operate during the so-called “Second Republic”, the similarity of professional background became an even more reliable indicator of similarity of judicial views. When the variable SAMEORIG is substituted with the less discriminatory SAMEORIG2 (Model 3), which bundles justices elected by the Parliament and those appointed by the President of the Republic into a single category, the ability of the similarity of background to explain the creation of “judicial couples” is significantly reduced: the estimated elasticity at the mean values goes down to 27.5%, when SECREP is not considered (Model 3), and to 32.7% when it is (Model 4). This pattern of coefficients is further evidence that the similarity in background is the driving factor in the selection of the Justice Reporter, because also the distinction between justices elected by the Parliament and appointed by the President of the Republic bears explanatory power with respect to the creation of the “judicial couples”. This strategy of selecting a Justice Reporter appears not be an instant equilibrium; rather, it emerged through time. In Models 2 and 4, which distinguish between the First and the Second Republic, we observe that the coefficient on the TIMEPRES covariate is positive, while in Models 1 and 3, where no such distinction is made, the same coefficient has a negative sign. This corroborates the interpretation that the stability of the judicial couples is higher in later than in earlier periods. Moreover, the coefficient of Model 4 shows that the probability that a later President adopts the strategy of selecting a Justice Reporter of the same origin is about 3% higher than his immediate predecessor. The other covariates, AGEDIFF and POLAFF, are never statistically significant in any of the 4 models. Neither the similarity in age between the President and the Reporter, nor the likeness in ideological and/or political affiliation exerts any influence in the choice of the Reporter by the President, irrespective of the period under consideration. In particular, the lack of explanatory power of the political affiliation variable, combined with the high significance of the professional background, suggests that the esprit de corps is stronger among justices than their ideology and/or party allegiance. This result confirms our previous finding (Fiorino et al., 2007; Padovano, 2009) that the professional background does influence the justices’ jurisprudence. Aware of that, a Justice President who seeks to obtain a decision of a case according to his views,

seeks the Justice Reporter first and foremost among the justices who come from his same career pattern. The explanatory power of the first four models is never very high, the adjusted R2 ranging between 0.09 in Model 4 and 0.24 in Model 2, the best fitting one, and the best performing in terms of the Akaike Information Criteria. Furthermore, the intercept is always negative and highly significant. This suggests that other factors, not considered in this study, play a role in the selection of the Reporter by a President. An obvious explanatory variable, not introduced in the analysis because of lack of recorded data, is the availability, at every moment a case of constitutional (il)legitimacy is brought before the Constitutional Court, of justices sufficiently free from other engagement to serve as Reporter. Another might be the “specialization” of the various justices, expressed in terms of judicial expertise and cultural background, which could make each of them most suitable for a particular type of cases whose constitutional illegitimacy the panel is evaluating, e.g. cases of labor law, family law, military law, etc. In other words, Eq. (1) models the creation of judicial couples as an unconstrained choice, while it is in fact a constrained one. Yet the overall estimates are always quite precise, as the F statistics, always significant at the 1% level in all models, proves. To further exploit the informational potential of our dataset, we study whether the justices’ professional background is correlated with their ideology. It is possible that Justices elected by the Parliament or appointed by the President of the Republic be more exposed to political interactions and therefore be more ideologically oriented. Hence, Justice Presidents might appoint a Reporter of their same professional background while they are actually, or at the same time, interested in finding a reporter of the same ideological persuasion. To disentangle these two affinities, we interact the dummies for similarity of professional background and for ideology and insert this interactive term in a model where the two individual variables are also considered. Eq. (2) illustrates the specification used, while Table 6 reports the results. JCOUPLEi = ˛0 + ˛1 AGEDIFFi + ˛2 SAMEORIGi + ˛3 POLAFFi + ˛4 TIMEPRESi + ˛5 SECREPi + ˛6 SAMEORIGi × POLAFFi + εi

(2)

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221

Table 6 OLS estimates of Eq. (2). Variable Dependent variables: JCOUPLES AGEDIFF SAMEORIG

Model 5

Model 6

Model 7

Model 8

0.0014 (0.02) 0.004*** (0.017)

0.0003 (0.0018) 0.048*** (0.017)

0.0009 (0.002)

−0.0006 (0.002)

0.045** (0.02) −0.015 (0.013) −0.0014*** (0.001)

0.071*** (0.025) −0.012 (0.011) 0.0025*** (0.001) −0.12*** (0.02)

0.01 (0.01) −0.17*** (0.03) 0.22 12.14*** −1.82 238

SAMEORIG2 POLAFF TIMEPRES

−0.006 (0.008) −0.002*** (0.001)

−0.006 (0.008) 0.001** (0.001) −0.103*** (0.022)

0.0016 (0.01)

0.001 (0.01)

SECREP POLAFF × SAMEORIG POLAFF × SAMEORIG2 CONSTANT

−0.073*** (0.02)

−0.11*** (0.02)

0.014 (0.014) −0.11*** (0.028)

Adj. R2 F-statistic AIC N

0.07 4.84*** −1.65 238

0.16 8.20*** −1.73 238

0.12 7.14*** −1.69 238

Note: Robust standard errors in parentheses. Denote significance at 10% level. ** Denote significance at 5% level. *** Denote significance at 1% level.

*

The interactive term is never significant. Such result is obtained whichever the specification of similarity of background adopted (SAMEORIG in Models 5 and 6 and SAMEORIG2 in Models 7 and 8). It is also found even when the First and the Second Republic are distinguished as in Models 6 and 8. The other results remain basically unchanged, including the estimated coefficients for the two individual variables of the interactive term: POLAFF is never significant while SAMEORIG and SAMEORIG2 always are. This suggests that the Justice Presidents actually discriminate between similarity in ideology and in professional background, and they consider only the second in their choice of the Justice Reporter. The diagnostics about the precision and explanatory power of Models 5–8 do not reveal noticeable changes with respect to Models 1–4. We finally focus the analysis on the transition from the First to the Second Republic, by verifying whether this change affected all the explanatory variables considered in the baseline regression of Eq. (1). We thus estimate the following equation:

Table 7 OLS estimates of Eq. (3).

JCOUPLEi = ˛0 + ˛1 AGEDIFFi × SECREPi + ˛2 SAMEORIGi × SECREPi

Note: Robust standard errors in parentheses. * Denote significance at 10% level. ** Denote significance at 5% level. *** Denote significance at 1% level.

+ ˛3 POLAFFi × SECREPi + +˛4 TIMEPRESi ×SECREPi +εi (3) In other words, Eq. (3) verifies whether the transition from the First to the Second Republic changed the actual relationships. Eqs. (1) and (2), instead, include just an intercept shift, i.e. they represent the events around 1993 as a single major change of the framework where the Constitutional Court operate that did not affect the determinants of the selection of Justice Reporter by the President. Table 7 reports the estimates of Eq. (3). The estimated coefficients do not show important changes of slope; the only statistically significant interactive terms are those whose continuous variables were already significant in Models 1–4, namely, SAMEORIG, SAMEORIG2 and TIMEPRES. The variables that did not result statistically significant in Models 1–4 did not gain any explanatory power when interacted with SECREP. The only exception is AGEDIFF, which suggests that similarity in age started to play a role in the choice of the Justice Reporter after 1993. Possibly, with dramatic changes undergoing in the outside political world, Justice Presidents began to choose Justice Reporters that were even

Variable

Model 9

Model 10

AGEDIFF × SECREP

−0.0067 (0.005) 0.093*** (0.026)

−0.0098*** (0.004)

SAMEORIG × SECREP SAMEORIG2 × SECREP POLAFF × SECREP TIMEPRES × SECREP CONSTANT Adj. R2 F-statistic AIC N

0.0021 (0.011) −0.0025*** (0.001) −0.086*** (0.007)

0.122*** (0.02) 0.011 (0.011) −0.004*** (0.001) −0.087*** (0.007)

0.18 14.28*** −1.78 238

0.24 19.72*** −1.85 238

closer to them, i.e. who not only belonged to their same professional background, but also to the same age cohort. 5. Conclusions The analysis shows that the choice of the Justice Reporter by the Justice President is not at all a random one. Probably the most important act of delegation by the chairman of the Italian Constitutional Court in the most sensitive area of jurisprudence of the Court, the cases of constitutional (il)legitimacy, is shown to be chiefly driven by the similarity in professional background. Presidents coming from the magistracy tend to choose Reporters of the same extraction, and so do Presidents elected by the Parliament and those appointed by the President of the Republic with their co-originaries. This strategy of delegation has been adopted more frequently as the activity of the Italian Constitutional Court

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progressed, possibly because more recent Justice Presidents have learned it by experience. The onset of the Second Republic, that brought about significant changes in the political environment where the Court operates, has somewhat diminished the stability of the judicial couples, without quantitatively affecting too much the choice of the Justice Reporter by the President of the Court. Other possible determinants of the choice of Justice Reporters by the Justice President, such as similarity in political affiliation, did not prove to be very relevant: we detected only some evidence that similarity in age started to become a factor after 1993. These results confirm our previous findings showing that the justice professional background systematically affects his/her decisions. The discovery of these strategies of delegation from the Justice President to the Justice Reporter sheds light on the inner workings of the Court and help to better understand the actual processes and customs through which justices generate the Court’s jurisprudence.

Appendix A. Institutional features of the Italian Constitutional Court The text of the Italian Constitution indicates that judicial independence is an important feature of the Italian political and institutional system and that the Italian Constitutional Court enjoys a significant degree of independence from the other two branches (Paladin, 1998; Zagrebelsky, 1997). The Constitution asserts that “. . . The judiciary constitutes an autonomous and independent branch of government not subject to any other” (art. 104, sec. 1) and provides conditions of structural independence to Constitutional justices, such as: the longest tenure among the Italian public officials (9 years, art. 135, sec. 3); a constitutional protection for “. . . conditions, forms, and terms for challenging the constitutionality of a law and [for] the independence of the justice” (art. 137, sec. 1); the nonappealability of the Court’s decisions (art. 137, sec. 3); and, last but not least, the general conditions that “. . . justice is administered in the name of the people” (art 101, sec. 1) and that “. . . judges are only subject to the law” (art 101, sec. 2). Fifteen justices compose the Italian Constitutional Court. They must come from the ranks of either active or retired judges, or professors of law or lawyers with at least 20 years of career. One third is elected with a simple majority by the members of the three highest Courts (the Supreme Court of Cassation, the Council of State and the Court of Audit); another third by the two Houses of Parliament (Chamber of Deputies and Senate) in joint session; the President of the Republic appoints the remaining third (art. 135 of the Constitution). A two-thirds majority of the total membership of the two Houses is needed for the election of Constitutional judges for the first three rounds, and thereafter, a three-fifths majority. The presence of such a high quorum requires a structural arrangement that corresponds to a de facto quota system. During the so-called First Republic (1948–1992 circa), two candidates were usually chosen by the Christian Democratic Party (DC), one by the Communist party (PCI), one by the Socialist party (PSI) and the last one by the smallest parties (republicans, PRI; liberals, PLI; or Social Democrats, PSDI). The introduction of the majoritarian system in 1993 and a wave of scandals overhauled turned the Italian political framework, resulting in the creation of two coalitions and, as regards to the election of constitutional judges, in the disappearance of the informal agreement. Yet, an agreement between the governing and the opposing coalition is still needed, as the majority usually finds it difficult to elect five judges without the support of the opposition. The five judges appointed by the President of the Republic tend to belong to the majority that supported his election by the Parliament, although, as the constitutional theorists (Zagrebelsky, 1997) maintain, the procedure that the Constituent Assembly established

in 1946 ensures the autonomy of the decision of the President.7 In order to guarantee the independence of the Court, the Italian law establishes a number of requirements, in addition to the procedures that regulate their election and appointment. Constitutional judges cannot be members either of the Parliament, or of the Regional Councils; they cannot exercise professional, commercial or industrial activities or be managers or auditors of for-profit corporations. Neither they can work as prosecutors or as university professors or participate to the activities of political parties. Once their term expires, justices on leave from a public sector office (chiefly those coming from the judiciary and the university professors of law) are reinstated in their previous positions; they are also given a lifetime pension in addition to the regular salary, unchanged in real terms. Even though most justices leave the Court in old age, many of them are called to other “prestigious” positions after their service in the Constitutional Court (Breton & Fraschini, 2003). The details of the procedures through which the Court in fact reaches its decisions allow understanding the changing degrees and the actual sources of structural independence of the Constitutional Court. First, the 15 justices elect a president among themselves who holds office for a renewable 3-year term. This term may in fact be shorter in case the Court tenure of the president expires before the third year of presidency. The president holds a significant agenda setting power: he sets the agenda of the cases to be reviewed, selects the justice reporter (Giudice Relatore) whose task is to prepare the first draft of each decision and holds a double voting weight in case of ties. Another important driving feature of the decision-making process of the Court is the so-called “panel of justices” (Collegio di Giudici). Although the Court formally decides as one acting body – dissenting opinions are not published – a panel of justices does in fact take each decision. The panel is appointed anew by the president of the Court for every case, it is composed by at least 11 justices, and decides by simple majority on the draft decision submitted by the judge reporter. The minimum size of 11 ensures that a coalition of 5 judges of the same extraction (presidential, parliamentary or judicial) may never hold the absolute majority. This is a first evidence that the appointment process is considered relevant for the type of decisions that the Court makes; in other words, it is expected to influence the sort of jurisprudence and the degree of independence of the Court. The structural independence of the Court then varies for every decision according to the composition of the panel; it is not a constant characteristic. Absences may affect the independence of the Court too; they may cause the effective composition of the Panel at the moment of the decision to differ from the one originally selected by the president; hence they may affect the relative weights of each type of justice within the panel and, by that, the relative independence of the Court. Vacancies play a similar role to absences, but on a somewhat greater scale. Justices who end their tenure are not always promptly substituted. This is more often the case for parliamentary or presidential justices than for “judicial” ones. During its history, the Court has gone through times, often much longer than a year, when less than 15 justices stood. This thwarted the equal weights of each type of justices within the Court, thus affecting its expected independence. Within the panel of justices the literature (Zagrebelsky, 1997) recognizes an agenda setting power to the justice reporter because he instructs the case, presents it before the panel that takes the final decision and, finally, actually writes down the motivations of the decision.

7 Differently from the usual decrees of the President of the Republic (the D.P.R.), which are proposed by the government or by single members thereof and then signed by the President, the decree that appoints the constitutional judges is of Presidential initiative and signature; it only needs to be countersigned by the Prime Minister.

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