The Shadow Effect of Courts: Judicial Review and the Politics of Preemptive Reform

Political scientists often claim that courts must adjudicate disputes to influence policy. Conversely, we theorize the shadow effect of courts: Policymakers preemptively altering policies in anticipation of possible judicial review. While existing American studies tie preemptive reforms to interest-group litigation and political support for judicial policymaking, we elaborate a comparative theory accommodating more hostile contexts for courts. We argue that in less litigious settings, shadow effects can still emerge when bureaucratic conflicts threaten to trigger adjudication and policymakers seek to starve courts of the cases needed to build their caselaw. Recalcitrant policymakers allow preemptive judicial influence to resist direct judicial interference. To assess our theory, we process trace how a sudden welfare reform in Norway, a country with limited litigation and judicial review, was triggered by an administrative conflict and government resistance to an often-overlooked international court. Our findings advance research on judicial impact, resistance to courts, and bureaucratic politics.