Countering Democratic Decay Judicially: Is Resistance Futile?

Abstract

Abstract With democratic decay advancing around the globe, scholars deeply disagree about courts’ ability to protect democracy. I argue that this divergence is influenced by conceptual and theoretical deficiencies of the debate. The existing approaches to judicial responses to democratic decay often do not pay sufficient attention to the differences among courts and the environments in which they operate. To tackle these issues, this article introduces the judicial countering capacity frame as an analytical tool to guide further empirical analysis. The framework recognizes courts’ agency but emphasizes the constraints and resources stemming from the environment in which a court operates. Moving away from single-factor explanations, I make a case for a multicausal understanding of judicial countering of democratic decay. I argue that the extent of a court’s countering capacity rests on three pillars: institutional design, the level of political pluralism, and political culture towards courts. The judicial countering capacity frame invites an empirically oriented agenda focusing on micro-mechanisms of judicial countering, their effectiveness, structural preconditions, and the plausibility of available judicial strategies. The article demonstrates the new frame on case studies of Colombia, South Africa and Poland.