Publication details
Will the courts save us? The ambivalence of judicial power in times of political pressure
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| Year of publication | 2026 |
| Type | Appeared in Conference without Proceedings |
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| Description | The aim of this paper is to ask what role judges play in liberal democracies at a time when democratic backsliding is occurring in many parts of the world. My focus on Central and Eastern Europe allows me to look more closely at the range of judicial stances and institutional roles across individual countries, and especially at the place of judicial review. I think that it is difficult to approach this subject without slipping into a categorical position: judicial review, yes or no; stronger judicial institutions, yes or no. If we are unwilling to make a clean break of that kind, we find ourselves in a kind of limbo in relation to the judiciary. In practice, our evaluation often becomes contingent. If the composition of a court suits us, if it is made up of judges whose worldview we share, we treat judicial review as a positive force. If it does not suit us, if the court is made up of judges whose commitments we distrust, we treat judicial review as something suspect or even harmful. This paper therefore focuses on the legitimacy of courts and judges in democratic Europe, and on the interpretive and strategic techniques through which they can tilt the scales in political conflicts. I look at how judges and courts, now under pressure from both the left and the right, act to consolidate their institutional position and to defend the values they regard as fundamental. I examine how judicial activism can protect democracy and perform a role that the idea of militant democracy imagines for courts, but also how it can damage democracy and reinforce the logic of juristocracy. I want to test these questions against left-wing critiques of judicial power, including those associated with Mark Tushnet, and to work through my own ambivalent position on judicial review. What follows is an initial probe into how judges may behave when they come under political pressure from the executive branch, and how their reactions may weaken faith in democratic institutions, or even play into the hands of a ruling autocrat. My starting point here was the moment when an ICE agent in Minnesota fatally shot Renée Good. What particularly shook me was the institutional response of those who were supposed to investigate her death, or at least to mourn it. I found myself turning my gaze toward the US courts with a plea to put an end to Kristi Noem and Donald Trump’s madness. And I was struck by the tension in my own reaction. Even as someone who remains critical of the political role of judges on higher courts, unelected actors in a technocratic world, I still wanted the judiciary to act against a president who enjoyed electoral legitimacy. This reflex made sense to me as someone living in Central Europe, in a relatively consolidated constitutional democracy. The following paper is therefore only a fragment of a longer line of thinking: one that experiences judicial review and the role of judges as something that can protect democracy, and sometimes protect us from autocrats. My primary point of reference in this chapter is the work of the constitutional lawyer Katarína Šipulová, who has studied the resilience of judicial institutions in Europe for years, particularly how courts and judges respond to attacks. I consider her work a strong starting point for exploring the role courts play in Europe today, and what that role means in the context of democratic backsliding. |
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