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Courts and democratic backsliding: A comparative perspective on the United States

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This article argues that courts in the United States are comparatively less likely to be captured than those of many other countries and more able to resist an authoritarian populist regime, but also somewhat more likely to facilitate democratic backsliding on their own account. In this way, they potentially could—and arguably already do—provide a relatively rare case of “abusive judicial review” by independent courts. The article also briefly considers whether the US experience provides any insights for the relationship of courts and democratic backsliding in other countries, and especially how the ability of courts to resist capture might be bolstered.

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In this introductory essay to the special issue of Law & Policy , “Global Perspectives on Judicial Politics and Democratic Backsliding,” we critically examine the paradoxical role of courts during episodes of democratic backsliding. Despite operating without direct democratic accountability—relying instead on legal precedents and doctrinal interpretations—courts are pivotal in defending democratic integrity during episodes of backsliding. This issue, featuring 10 articles by 15 scholars, offers a comprehensive and nuanced analysis of judicial politics of autocratization. Half of the articles deal directly with the U.S. judiciary, highlighting its unique standing that allows it to both enable and resist democratic backsliding. The other half of the issue explores case studies from Europe, Southeast Asia, and Latin America, highlighting a great deal of variability of tactics, approaches and outcomes. Published during a critical electoral year in 2024, this collection emphasizes the need for ongoing research into the judiciaries' dual capacity to both safeguard and undermine democratic norms.
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What research on democratic backsliding often overlooks is that protest against the decline of rule of law also emerges inside state institutions. In Poland, the judges' associations are using legal means, organising public events and urging the European institutions to stand firm towards the Polish government. In this article, I analyse the judiciary's collective actions and motivations regarding on- and off-bench mobilisation. Based on in-depth interviews with judges, I show how they focus on litigation but use lobbying and protesting as complementary tools. Moreover, their networking and adaptation of measures to changing circumstances proves their ability to act strategically. © 2022 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group.
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Wide-ranging public discussion of U.S. Supreme Court reform implicates fundamental questions of constitutional policy, norms, and law. This Article focuses on the reform proposal that poses the greatest threat to judicial legitimacy and independence: Court-packing. This Article contends that there has likely been a constitutional convention against Court-packing for a long time now, although it is uncertain whether the convention continues to exist given Senate conduct since 2016. This Article also maintains that Court-packing is not as free from constitutional difficulty as the conventional wisdom holds, even if the arguments for its constitutionality are stronger on balance. Most importantly, this Article offers an analytical framework for thinking about Court-packing that rests upon a common-ground foundation: the Court performs critical functions that most Americans want it to perform; most of the time, it performs these functions better than the available governmental alternatives; and Court-packing would almost certainly damage, if not destroy, its ability to continue performing these functions by impairing its legitimacy and independence. Court-packing should therefore be reserved for extreme situations in which adding seats would: (1) respond proportionally to a previous instance of unjustified Court-packing; (2) restore the Court’s legitimacy in the eyes of a large majority of Americans; or (3) meet a national crisis to which the Court was contributing. Moreover, even when an extreme situation exists, Congress should ask itself whether it can legislate in other ways to address pressing problems before packing the Court. Applying this framework, this Article cuts against the ideological grain of current debates. As many progressives advocate Court-packing and many conservatives oppose it, this Article shows there are principled reasons to resist Court-packing at this time, even if one believes that Senate Republicans violated an important convention requiring good-faith consideration of Supreme Court nominees and then added hypocrisy to their norm violation, and even if one is deeply concerned about the ideological orientation and methodological assertiveness of the current Court.
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After its double victory in the 2015 presidential and parliamentary elections in Poland, the populist Law and Justice ( Prawo i Sprawiedliwość (PiS)) party began to dismantle all major checks and balances characteristic of the separation of powers in a democratic state. Poland’s Constitutional Tribunal, its regular courts including the Supreme Court, its National Council of the Judiciary, as well as its electoral commissions, civil service, and public media have all been subordinated to the executive and are single-handedly controlled by the party’s leader. In the process, political rights such as the freedom of assembly have been radically restricted, and the party has captured the entire state apparatus. The speed and depth of anti-democratic changes took many observers by surprise, as Poland had been widely regarded as an example of a successful ‘transitional democracy’ in the quarter century preceding 2015. This book attempts to answer three major questions triggered by Poland’s anti-constitutional breakdown: What exactly has happened? Why has it happened? What are the prospects of returning to liberal democracy? Answers to these questions are formulated against the backdrop of current worldwide trends towards populism, authoritarianism, and what is sometimes called ‘illiberal democracy’. However, as this book argues, the Polish variant of ‘illiberal democracy’ is an oxymoron. By undermining the separation of powers, the ruling party concentrates all power in one hand, thus rendering any democratic accountability illusory. There is, however, no inevitability in anti-democratic trends: this book considers a number of possible remedies and sources of hope, including intervention by the European Union.
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Twenty-five years after the fall of the Berlin Wall, the democratic ascendency of the post-Soviet era is under severe challenge. While fragile democracies in Eastern Europe, Africa, and East Asia face renewed threats, the world has witnessed the failed democratic promises of the Arab Spring. What lessons can be drawn from these struggles? What conditions or institutions are needed to prevent the collapse of democracy? This book argues that the most significant antidote to authoritarianism is the presence of strong constitutional courts. Distinct in the third wave of democratization, these courts serve as a bulwark against vulnerability to external threats as well as internal consolidation of power. Particular attention is given to societies riven by deep divisions of race, religion, or national background, for which the courts have become pivotal actors in allowing democracy to take root.
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Among the questions that vex the federalism literature are why states check the federal government and whether Americans identify with the states as well as the nation. This Article argues that partisanship supplies the core of an answer to both questions. Competition between today's ideologically coherent, polarized parties leads state actors to make demands for autonomy, to enact laws rejected by the federal government, and to fight federal programs from within. States thus check the federal government by channeling partisan conflict through federalism's institutional framework. Partisanship also recasts the longstanding debate about whether Americans identify with the states. Democratic and Republican, not state and national, are today's political identities, but the state and federal governments are sites of partisan affiliation. As these governments advance distinct partisan positions, individuals identify with them in shifting, variable ways; Americans are particularly likely to identify with states when they are controlled by the party out of power in Washington. States also serge as laboratories of national partisan politics by facilitating competition within each political party. In so doing, they participate in national political contests without forfeiting the particularity and pluralism we associate with the local. By instantiating different partisan positions, moreover, states generate a federalist variant of surrogate representation: individuals across the country may affiliate with states they do not inhabit based on their partisan commitments. Attending to the intersection of partisanship and federalism has implications for a number of doctrinal controversies, such as campaign finance across state lines and access to state public records. The analysis here suggests that porous state borders may enhance states' ability to challenge the federal government and to serve as sites of political identification.
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One of the most remarkable political developments of the twentieth century has been the development of constitutional democracy in Europe after World War II. The defeated powers in the western part of the continent adopted new constitutions that embraced notions of individual rights and limited government. It is difficult to overstate how fundamental these changes have been in transforming preexisting legal systems and cultures and indeed, in transcending historical political divisions. The most important transformation in these new constitutions was the introduction of constitutional courts with power to review and strike down legislation, and also to adjudicate conflicts among governmental departments. 1 These new courts have grown in activity and importance since their introduction. And, they have spread to other countries throughout Europe with each wave of democratization—to Spain and Portugal in the 1970s and to Eastern Europe with the establishment of postcommunist constitutional regimes after 1989. (noting that the Federal Constitutional Court has jurisdiction to hear public law disputes "between the federation and the states, between different states, or within a state if no other legal recourse is provided"). One should note that this is the first important difference between the European mechanism of constitutional adjudication and the American judicial review of legislation. In the European model, the constitutional court has explicit jurisdiction over the conflicts among branches of the central government (Organstreit in Germany, conflitti di attribuzioni in Italy). See id. at 12 (stating that the Federal Constitutional Court has jurisdiction over Organstreit proceedings, which are "constitutional disputes between the highest 'organs,' or branches" of the German government); Pasquale Pasquino, Lenient Legislation: The Jurisprudence of the Italian Constitutional Court (June 1999) (unpublished manuscript, on file with author) [hereinafter Pasquino, Lenient Legislation] (stating that the Italian Constitutional Court is empowered to pass judgment on "[c]onflicts arising from allocation of powers of the State and those allocated to State and regions, and between regions"). The U.S. Supreme Court has not exercised any equivalent power. The American Court has traditionally been reluctant to intervene in interbranch disputes. See MAURO CAPPELLETTI, THE JUDICIAL PROCESS IN COMPARATIVE PERSPECTIVE 138 (Paul J. Kollmer & Joanne M. Olson eds., 1989) (arguing that the U.S. Supreme Court often avoids cases involving disputes between the political branches). The European constitutional courts are outside the judiciary and play the role of an umpire when there are conflicts among the branches of the government. Pasquale Pasquino, Constitutional Adjudication and Democracy. Comparative Perspectives: USA, France, Italy, 11 RATIO JURIS 38, 48 (1998) [hereinafter Pasquino, Constitutional Adjudication]. It is clear that the constitutional philosophies underlying the two institutional systems are quite different. This topic is worth serious inquiry.
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This paper identifies and grapples with an increasingly important phenomenon: the use of mechanisms of constitutional change to erode the democratic order. A rash of recent incidents in countries as diverse as Egypt, Venezuela, and Hungary has shown that the tools of constitutional amendment and replacement can be used by would-be autocrats to create quasi-authoritarian regimes with ease. Rather than using military coups to create authoritarianism, actors rework the constitutional order with often subtle changes in order to make themselves difficult to dislodge and to disable or pack courts and other accountability institutions. This piece makes three contributions to the literatures on constitutional theory and international and comparative constitutional design. First, I draw on interdisciplinary research from law and political science, as well as examples from around the world, to describe these abusive constitutional techniques and to argue that they represent the major current and future threat to democracies worldwide. Second, I show that the major democracy-protecting mechanisms in international law and comparative constitutional law are obsolete – most of these tools are still aimed at older threats like coups and totalitarian movements, and are unable to effectively detect and deal with modern instances of abusive constitutionalism. Third, I bring together recent scholarship and case-law to suggest an agenda that is more effective against this new threat. This work pushes towards making constitutional change selectively rigid, allowing many alterations to occur rather easily while identifying certain kinds of change that are especially harmful to the constitutional order and holding them to higher standards. A consideration of the problem of abusive constitutionalism helps to improve these developing practices and offers important and controversial insights, such as the need for a doctrine of substantively unconstitutional constitutional amendments and for restrictions on the process by which an existing constitution may be replaced. The goal is to reframe the conversation about how the fields of comparative constitutional law and international law might best be leveraged to protect new democracies.
Article
For the past several years I have been noticing a phenomenon that seems to me new in my lifetime as a scholar of constitutional law. I call the phenomenon constitutional hardball. This Essay develops the idea that there is such a practice, that there is a sense in which it is new, and that its emergence (or re-emergence) is interesting because it signals that political actors understand that they are in a position to put in place a new set of deep institutional arrangements of a sort I call a constitutional order. A shorthand sketch of constitutional hardball is this: it consists of political claims and practices - legislative and executive initiatives - that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings. It is hardball because its practitioners see themselves as playing for keeps in a special kind of way; they believe the stakes of the political controversy their actions provoke are quite high, and that their defeat and their opponents' victory would be a serious, perhaps permanent setback to the political positions they hold.The Essay begins in this Part with some examples of constitutional hardball, followed by a description of the practice in more general terms. Part II develops the connection, asserted in this Part, between constitutional hardball and changes in fundamental constitutional arrangements or, in my own terms, constitutional orders. Part III then describes the events surrounding Marbury v. Madison as an episode of constitutional hardball. Part IV offers further elaborations of the concept, emphasizing in particular the ways in which constitutional hardball can fail and defending the concept against the charge that it does not in fact single out a practice that is different from ordinary constitutional politics. Finally, Part V provides some modest normative reflections on constitutional hardball.
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