Judicial resistance to democratic backsliding

By Christopher Grady

Research comparing different countries is confirming the importance of the judiciary in resisting democratic backsliding. Here we review the evidence on how executives capture the judiciary to circumvent judicial oversight, and how citizens and elected officials reverse such judicial backsliding when it occurs.

De jure independence and civil society pressure help courts resist backsliding

As concerns about democratic backsliding continue, research has pointed to the judiciary as a key bulwark against democratic erosion. One recent paper studied the conditions under which courts rule against the incumbent in electoral disputes. Using evidence from Kenya, it finds that courts are more likely to rule against the ruling party when institutional reforms (1) reinforce de jure court independence and (2) mobilize judicial support networks to engage in strategic and repeated litigation. The enactment of provisions that foster de jure independence, coupled with intense scrutiny from the opposition and civil society, creates an environment where courts can have more to lose when siding with the incumbent. This research demonstrates the importance of institutional reform for fostering or undermining democratic institutions.

Judicial backsliding occurs when legislative branch does not constrain the executive

Autocratizing leaders realize the barrier posed by an independent judiciary and therefore judiciaries are often early targets of autocratizing leaders. A new paper considered the conditions under which judicial backsliding occurs. It found that decreased legislative constraints on the executive predict the onset of judicial backsliding. Contrary to popular wisdom, the degree of an executive’s partisan support in the legislature did not, by itself, predict judicial backsliding. This research helps us understand the conditions that lead to judicial backsliding, which can help us prevent it.

But how does the executive capture judiciaries that are meant to keep executive power in check? Often control of the judiciary is achieved through corrupt judicial appointments and disciplinary processes, or through behind-the-scenes payoffs. With those methods anticipated by democracy defenders, autocratizing leaders are learning to exploit legal means of corrupting the judiciary. Researchers studied one such legal tool in Pakistan, where a system called ‘Prime Minister’s Assistance Package’ allows the executive branch to legally distribute high-end properties to senior officials within the Pakistani bureaucracy. The researchers show that the government uses these “assistance packages” to induce pro-government rulings from the judiciary. This research illuminates a legal and transparent method that governments are using to circumvent judicial oversight.

Rebuild rule of law through domestic and international support

How do court systems recover from judicial backsliding? A new paper derives lessons by analyzing cases of judicial backsliding and resurgence from 1990-2021. The paper finds that, in the current era, approaches based on the work of civil society and those based on international organizations’ monitoring, reporting, and sanctioning may be more effective than approaches emphasizing law and development or education and socialization. The paper also recommends that, in this era of democratic backsliding, reforms to promote rule of law should be sensitive to the political contexts that have fostered backsliding. For example, reform efforts should have input from citizens within countries. This research shows the importance of mobilizing domestic and international support for democratic institutions.