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Philosophy

The Role of Independent Courts in Democratic Backsliding

Quick fact

In Hungary, by 2014, the government had effectively removed constitutional checks by reducing the court's power through enforced early retirement and stacking it with allies, making the judiciary part of the executive's toolbox.

Why this is interesting

Did you know that one of the first things a leader does when they want to increase their power is to try to control the courts?

Read the full explanation

Understanding The Role of Independent Courts in Democratic Backsliding

Imagine a referee in a soccer game. The referee ensures both teams play by the rules. In a democracy, courts act as referees between the government and the people. Independent courts have the power to say 'no' to the government when it tries to break the rules. But when a leader wants more power, they might try to get rid of the referee or replace them with someone who will favor their team. Democratic backsliding is when a leader slowly chips away at the democratic rules, and the courts are often a key target. Without independent courts, there is often no one to stop the government from changing the rules as they go.

A deeper explanation

Independent courts are a pillar of democratic accountability, ensuring that the executive acts within legal boundaries. When democratic backsliding occurs, incumbents often seek to undermine judicial independence through several mechanisms. First, they may ‘pack the court’ by increasing the number of judges and filling the new seats with allies. Second, they may strip the court of its jurisdiction over certain matters, removing key executive actions from judicial review. Third, they may use impeachment or disciplinary processes to remove or threaten judges who rule against them. These strategies are often implemented through legal formalities, making them look legitimate. However, by reducing the judiciary's ability to check the executive, the separation of powers is weakened, and the balance tips toward authoritarian rule. Understanding these mechanisms is vital because the health of a democracy can be measured by the resilience of its independent institutions, especially the courts.

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