In 2020, less than two months before the US presidential election, Supreme Court Justice Ruth Bader Ginsburg died. Just eight days before Election Day, President Donald Trump presided over Amy Coney Barrett’s confirmation to fill the resulting vacancy, solidifying a six-to-three supermajority for conservative justices on the nation’s highest court. Coney Barrett’s nomination and subsequent confirmation were especially contentious given what had happened four years prior. In 2016, the Republican Party–controlled US Senate refused to hold a nomination hearing for Merrick Garland, whom President Barack Obama had nominated to the Court in March shortly after Justice Antonin Scalia’s death. On 23 February 2016, Senate Majority Leader Mitch McConnell announced in a speech: ‘Presidents have a right to nominate, just as the Senate has its constitutional right to provide or withhold consent. In this case, the Senate will withhold it. The Senate will appropriately revisit the matter after the American people finish making in November the decision they’ve already started making today.’ After Donald Trump’s inauguration in 2017, the Senate confirmed his nominee, Judge Neil Gorsuch, to Scalia’s former seat. In light of this history, the Democratic Party’s leader in the Senate, Chuck Schumer, called Justice Barrett’s confirmation the completion of ‘the partisan theft of two seats on the Supreme Court’ in a speech on 26 October 2020.
Courts and democratic backsliding
Democratically elected leaders who have autocratic aspirations often take steps to neutralise or capture the judiciary in order to subvert ‘checks and balances’ between branches of government. Such attacks on the judiciary are a key feature of democratic erosion or backsliding, which Stephan Haggard and Robert Kaufman define in their 2021 book as ‘the incremental erosion of institutions, rules and norms that results from the actions of duly elected governments’. Backsliding governments often target courts because the judiciary can declare laws unconstitutional, acting as a check on executive power. In other words, judiciaries can hold the line. In 2010, for example, the Colombian Constitutional Court ruled against President Alvaro Uribe’s attempt to increase term limits from two to three, a case highlighted by Gamboa, García-Holgado, and González-Ocantos in their article on how courts in Latin America have resisted democratic backsliding.
Alternatively, if a backslider successfully captures the judiciary, the court can act as an enabler of democratic erosion. In their article ‘Abusive Judicial Review: Courts Against Democracy,’ David Landau and Rosalind Dixon cite several cases of captured courts furthering democratic backsliding. After Hugo Chavez packed the Venezuelan Supreme Court, for example, the captured judiciary ruled in favour of ‘electoral changes that greatly favoured the incumbent regime’ and allowed for the elimination of presidential term limits. Venezuela, which had been widely considered a leader in democratisation in South America, is now an authoritarian regime. As of 2024, it ranked 147 out of 167 countries on the Economist Intelligence Unit’s Democracy Index.
Still, democratic backsliding does not inevitably end in authoritarianism, even when the backslider is able to capture the courts. While other forms of regime change, such as coups or revolutions, can happen rapidly, democratic backsliding takes place over years. This affords opposition leaders the opportunity to compete in and win elections against the backslider. In cases of electoral turnover after a burgeoning autocrat has seized control of courts, post-erosion leaders seeking to restore the democratic system may find themselves pursuing a Sisyphean task, as any progress they make could be struck down by a hostile court. This leaves them to face an unenviable paradox: how can they recalibrate the judiciary without undermining the rule of law?
Undoing court capture: paths to judicial re-equilibration
Judicial re-equilibration, building upon Juan Linz’s concept of democratic re-equilibration, is a process through which post-erosion leaders seek to recalibrate courts compromised by backsliding such that their legitimacy and independence are restored to pre-backsliding levels. There are broadly two paths post-erosion leaders can take: legalistic re-equilibration or aggressive re-equilibration. I define legalistic re-equilibration as measures that conform to ‘politics as usual,’ such as prospective institutional reform passed by the conventional legislative process. Legalistic judicial re-equilibration therefore requires broad support among the political elites, though the exact benchmark varies depending upon a country’s legislative procedures.
Aggressive judicial re-equilibration, on the other hand, is how I label post-erosion leaders’ employment of extraordinary, norm-breaking tactics to re-equilibrate courts, such as purging justices or expanding the size of the court. The concept of aggressive judicial re-equilibration mirrors that of militant democracy, a term coined by Karl Loewenstein in 1937. Loewenstein argued that, to protect democracy from fascist takeover, governments needed to enact measures seemingly antithetical to democratic values. Democracies, he wrote in ‘Militant Democracy and Fundamental Rights II,’ ‘should be willing to meet and defeat the fascist technique on its own battle-ground’. Likewise, aggressive judicial re-equilibration may involve utilising the same techniques as backsliders, but for the purpose of re-establishing independent judiciaries.
Many scholars advance arguments that would condemn aggressive approaches to judicial re-equilibration. In their 2018 book How Democracies Die, Steven Levitsky and Daniel Ziblatt wrote that ‘[o]pposition to the Trump administration’s authoritarian behavior should be muscular, but it should seek to preserve, rather than violate, democratic rules and norms’ (p. 217). Lydia Brashear Tiede advocated for a similarly restrained approach in her article ‘Rebuilding the Rule of Law in an Era of Democratic Backsliding,’ writing that post-erosion leaders ‘must refrain from using the methods used by their autocratic brethren, such as truncated legislative procedures, emergency decrees, and the packing and purging of judges and other legal personnel put in place by former leaders’. There is good reason to exercise caution in judicial re-equilibration. Beyond risking accusations of hypocrisy, post-erosion leaders who use the same tactics employed by attempted autocratic predecessors could be acting in ways counterproductive to restoring democracy. Their actions could, for example, undermine public trust in judicial decisions. Perhaps even more dangerously, aggressive judicial re-equilibration could serve to justify any action successors take to (re)capture the courts.
The issue with an unequivocal denunciation of aggressive judicial re-equilibration is that legalistic re-equilibration is often not possible. An article published by Reuters on 2 August 2024 highlighting Prime Minister Donald Tusk’s re-equilibration efforts in Poland demonstrates the difficulties of a legalistic approach. Tusk’s governing coalition is attempting to recalibrate the judiciary after it was captured by the backsliding Law and Justice party (PiS), who ruled from 2015 to 2023. Tusk has introduced a bill that would restore the process of selecting judges as it had been prior to a 2017 change PiS enacted in order to increase the party’s control over the selection process. However, due to Poland’s parliamentary-presidential government structure, President Andrzej Duda, a member of the PiS, still holds veto power over a potential change. In fact, Duda has sent the bill to the Constitutional Tribunal, a judicial body dominated by PiS-aligned judges, for a ruling on the law’s constitutionality.
Where legalistic re-equilibration is not possible due to the backsliding party retaining a significant amount of power in the legislature, post-erosion leaders may have to choose between more aggressive judicial re-equilibration tactics and inaction. And while aggressive re-equilibration presents risks, as discussed above, so too does inaction.
The danger of inaction
In Hungary’s post-communist transition to democracy, Monika Nalepa explains in ‘Transitional Justice and Authoritarian Backsliding,’ the new government limited the extent to which transitional justice measures including purges and lustration were applied to the communist-era courts, citing concerns of judicial independence. Decades later, Prime Minister Viktor Orbán and his FIDESZ party used the lack of transitional justice to justify court-capturing measures under the guise of ‘decommunisation.’ On 15 September 2022, the European Parliament adopted a report classifying Hungary as an ‘electoral autocracy,’ which a press release from the same day defined as ‘a constitutional system in which elections occur, but respect for democratic norms and standards is absent.’ A large section of the report was dedicated to how attacks on judicial independence contributed to this outcome. Thus, failure to re-equilibrate a compromised judiciary after transitioning away from one authoritarian regime helped pave the way for another to eventually take its place.
More immediately, failure to substantially recalibrate courts compromised by backsliding could spell a death sentence for democracy. The contemporary United States may turn out to be one such example. For the first three-and-a-half years President Joe Biden was in office, he did not make any considerable effort, legalistic or aggressive, to re-equilibrate the Supreme Court. Then, towards the end of Biden’s term as president, the conservative supermajority in the Supreme Court ruled in Trump v. United States that former presidents have ‘absolute immunity from criminal prosecution for actions within [their] conclusive and preclusive constitutional authority,’ as well as ‘at least presumptive immunity from prosecution for all [their] official acts’ (p. 1). The legal question at issue in Trump v. United States was if Trump could be held criminally liable for his efforts to overturn the legitimate results of the 2020 presidential election and attempt to illegally retain the presidency. The question must be asked: how democratic can a country be if a former president cannot be held liable for crimes they commit while in office, including attempts to stay in power despite losing a free and fair election? After this ruling, Biden announced support for judicial reforms, but it was too little too late. No reforms were passed, and Trump was re-elected in November 2024.
Ultimately, there is no perfect answer when it comes to questions of how to repair compromised courts. Those condemning aggressive re-equilibration are right to be concerned about hypocrisy and the degeneration of politics into a ‘they started it!’ primary school tit-for-tat. I do not wish to minimise these risks, so I emphasise that aggressive re-equilibration should not be the first choice of action when faced with a compromised court. However, if legalistic re-equilibration is not possible, post-erosion leaders should consider the costs of inaction before ruling out the pursuit of more aggressive judicial re-equilibration tactics. As we continue to witness the rise of aspiring autocrats across the globe, politicians dedicated to democracy’s survival will need to seriously weigh whether fighting fire with fire is worse than not fighting it at all.