(How) Can Courts Strengthen Their Power In the Face of Democratic Decline?

When courts seek to strengthen their own institutional power, they often need to be strategic. In many fraught political contexts, judiciaries lack a history of asserting authority against powerful political actors. How can courts with fragile authority establish and enhance judicial power? This article explores the phenomenon of strategic judicial empowerment, offering an account of how and when courts deploy various strategies aimed at enhancing their institutional position vis-à-vis other branches of government. Drawing on recent examples from apex courts in Pakistan, Malawi, Malaysia, and the United Kingdom, it explores the ways in which judges use tools of statecraft to increase the effectiveness of their decisions and enhance their role in the constitutional order. Tew explores the particular strategies that courts might employ in service of self-empowerment, such as strategies of maxi-minimalism and mini-maximalism.

Courts are weak institutions at least when compared to their elected counterparts. Courts possess neither the sword nor the purse and, by themselves, have little chances to resist an aggression coming from the elected branches. In scenarios of democratic erosion, this would mean that it is very unlikely that a court can halt the undemocratic impulses of legislatures and executive offices. While this is generally true, a few courts around the world –usually labeled as “strong“ or “powerful“ courts– have managed to slow down or even entirely put an end to processes of democratic decay. This paper seeks to define what judicial strength (or power) is, and what its sources are. In a world facing democratic backsliding, refining our comprehension of judicial power and its drivers is something relevant as a strong court can at least offer more resistance to undemocratic rulers and, in extraordinary cases, save democracy.

In recent years the concept of towering judges has been developing in comparative constitutional law (Aberaytne & Porat eds., 2021). This paper explores the idea of towering judges in the context of Mexico‘s Supreme Court Chief Justice: Arturo Zaldívar. Chief Justice Zaldivar‘s towering figure will be analyzed from a political and institutional perspective. From a political perspective, Justice Arturo Zaldivar has deployed a progressive liberal/transformative/feminist discourse, while in practice, from an institutional perspective, has been a central collaborator (e.g. through his power of agenda setting) for the implementation of the federal government‘s democratic erosion strategies. Against the backdrop of this analysis, the paper discusses in what ways Chief Justice Zaldivar‘s “toweringness“ has been positive or detrimental for constitutional democracy in Mexico.

Many countries have experienced democratic declines as elected executives deploy a populist threat to entrench themselves in power. In response, a cottage industry of constitutional scholarship has sprung up proposing “guardrails“ for democracy. These fall under two headings: bureaucratic and judicial. The former looks to independent actors seeded through the administrative state like election monitors - the latter to the power of judicial review. American scholars have revived the debate over “militant“ democracy. Yet, they conceive militant democracy in terms of judicial, as opposed to bureaucratic, solutions. I claim that America‘s militant democracy regime is doomed to remain inchoate and weak unless it explores deeper institutional reforms in the bureaucratic mode. The judicial remedy alone is insufficient. This article explains how the bureaucratic remedy could be deployed in the US.

The literature on courts under authoritarian or hybrid regimes typically suggests that judges that decide to challenge a regime in high-stakes cases might face political backlashes. For that reason, some argue that courts should develop strategies such as judicial avoidance or weak judicial review. I argue that sometimes those strategies are unnecessary. To be successful, judges need to identify the autocrats' expected costs of disobeying the judicial decision. If the projected costs are high enough, dictators might prefer to obey the ruling. One way in which this judicial strategy can work is by triggering a “Constitutional Paradox.“ The paradox is a dilemma that forces the dictators to decide whether to respect the rulings while supporting and enforcing the institutions they had established, or to disobey the unfavorable decisions while risking to divide the regime's supporting coalition, harming their credibility and weakening the legitimacy or authority of their institutions.