Technology
The Role of Constitutional Courts in Democratic Backsliding
Quick fact
In Hungary's 2010–2014 reforms, the government used its parliamentary supermajority to redesign the constitutional court and appoint loyalists, removing the court as an effective check on executive power, yet the government's steps were formally constitutional.
Why this is interesting
You'd think that after an election, the real power goes to the people. But in some countries, the decisive battles are actually fought in courtrooms, shifting who truly holds power. How do judges shape the survival of democracy itself?
Read the full explanation
Understanding The Role of Constitutional Courts in Democratic Backsliding
Imagine a game where the referee is supposed to make sure no one breaks the rules. In a democracy, constitutional courts are those referees, deciding whether new laws and actions by the government stay within the limits set by the constitution. Democratic backsliding is the slow, legal erosion of democratic institutions, often by leaders who were elected. Courts are often the last line of defense. But they can also be turned into players who favor the government. How? By controlling who becomes a judge, by limiting what cases the court can hear, or by ignoring the court's rulings. When a court becomes packed with loyalists, it may start to rule in favor of the government even when the law is clear. This is like a referee who starts siding with one team, making the game unfair but still officially following the rules.
A deeper explanation
The mechanism by which constitutional courts either protect or enable backsliding centers on their independence and the political incentives for judges. A court with strong institutional independence is more likely to rule against the executive, because judges are not afraid of losing their jobs. But independence can be removed through structural changes: modifying appointment procedures, increasing court size to flood it with loyalists, or threatening to punish judges for unpopular rulings. When judges fear for their positions or future careers, they may strategically self-censor, anticipating the executive's response. This is called 'anticipatory obedience'—the court rules in the government's favor not because it is legally right, but to avoid conflict. The result is that authoritarian measures receive judicial legitimacy, making them appear lawful and orderly. This undermines the check-and-balance function of the court and accelerates backsliding, because the last institutional barrier has been neutralized.