Judicial Resilience and Democratic Decay

Paraphrasing Tolstoy, scholars have found that while independent judiciaries are all alike, each dependent judiciary is dependent in its own way (Kosař & Spáč 2022, Svolik 2012). Politicisation, interference in decision-making, court-packing, court-curbing, corruption, telephone justice, and cronyism: a few examples of challenges faced by judiciaries worldwide. The last decade demonstrated that democratic and autocratic political leaders may be tempted to tinker with courts (Daly 2022, Braver 2020, Castagnola 2018, Chavez 2012, Taylor 2014), either to weaponize them against potential opponents or to disempower them (Helmke 2008, Guarnieri 2013, Landau 2013, Pozas-Lozo & Rios-Figueroa 2018, Sadurski 2019, Madsen & Cebulak & Wiebush 2020, Popova 2020, Dixon 2021, Tushnet & Bugaric 2022, Kosař & Šipulová 2022). Extant scholarship demonstrates how institutional reforms expected to deliver the rule of law have often failed. In some countries, formal safeguards of judicial independence were insufficient to deter political leaders from tinkering with courts (Kosař & Šipulová 2020). In others, principles of judicial independence were not sufficiently internalised by judges, politicians, civil society, and the public (Popova & Beers 2021). Other scholars demonstrate how courts under pressure exercise strategic restraint to survive in a challenging political environment (e.g. Clark 2010). Yet, while judiciaries have clear institutional interests in safeguarding their independence, their ability to do so remains poorly understood. This Workshop seeks to better understand the ability of ability of judges to withstand political pressure (Šipulová 2021, Tew 2021, Puleo & Ramona 2022). We posit that courts and judges should be studied as actors employing different resistance strategies. These strategies implement formal or informal tools and practices to prevent, avert, invalidate, or sanction interference from political actors. Each strategy brings different costs and benefits that must be carefully evaluated. Existing research suggests formal tools are often short-lived: once captured, courts might not be able to initiate legal safeguards of their independence (Sadurski 2019). Judicial resilience may be understood as a long-term quality, consisting of: 1. courts’ capacity to implement resistance strategies (formal and informal) 2. judges’ willingness to withstand political pressures 3. judges’ ability to build alliances. The Workshop seeks to explore all three elements. It invites Papers employing diverse methods and theoretical approaches, to answer the following questions:  How should we measure judicial resilience?  Why are some judiciaries more resilient than others?  What tools can courts implement to react to intra- and extra-judicial attacks on their independence?  How does judicial resistance change over time?  What motivates judges to resist?  What factors affect their behaviour and willingness to face challenges to judicial independence?  Is judicial resilience gendered?  Are (fe)male judges more willing to resist attacks?  Are (fe)male judges more loyal to autocrats?  How do judges build alliances?  What impact do judicial networks between domestic and international/supranational courts (CJEU, ECtHR, IACtHR) have on fostering judicial resilience?  How do supranational courts resist interference?  How does the public react to politicisation of the judiciary and attacks on judicial independence?  Should courts be socially responsive?