Judicial Authority Under Pressure: Politicisation and Backlash against Courts in the Age of Populism

In the last 25 years or so, the judicialization of politics has been a recurrent theme in both international relations and comparative politics. Scholars from a variety of disciplines have pointed to the increasingly powerful role of courts in allocating resources, as well as shaping societal values (Tate and Vallinder 1995, Hirschl 2004). Judicialization is evidenced by the transfer of decisions-once rendered by representative institutions-to courts. It is further exemplified by the growth of litigation as a political strategy, and third-party dispute resolution as an alternative mode of conflict resolution to traditional forms of political bargaining and electoral politics. The normative implications of this trend have been much discussed, including possible costs in terms of democratic accountability, national sovereignty (vis-à-vi international courts), and potential liberal bias inherent in the emphasis on individual rights (Von Bogdandy and Venzke 2012). More recently, however, a contrary trend seems to be evolving. Both at the international (Voeten 2017, Abebe and Ginsburg 2018) and at the domestic level (Bugaric and Ginsburg 2016, Kuo 2016, Minzner 2011), scholars have found an increasing number of instances of "politicization" (Ferejohn 2002) or "backlash" (Voeten 2017) against courts. Examples of backlash-or threats of backlash-in the international arena include a variety of state actions, such as African states (led by Kenya) threatening to leave the International Criminal Court (ICC) (Helfer and Showalter 2017), states (e.g. Indonesia, Poland, South Africa, Venezuela) seeking to withdraw from the Investment Treaty Arbitration system (ITA) (Langford and Behn 2017), the Constitutional Tribunal of the Dominican Republic refusing to accept the jurisdiction of the IACtHR after a controversial decision of the latter (regarding the rights of the Haitian minority) (Voeten 2017), and the Southern African states (led by Zimbabwe) eliminating the Southern African Development Community tribunal (Alter, Gathii and Helfer 2016). Even the most established international tribunals have faced challenges. The decision by the UK to leave the European Union has partly been motivated by an urge to be freed from the jurisdiction of the purportedly activist Court of Justice of the EU. Russia has implemented reforms in order to empower national courts to disregard the ECtHR. At the national level, most attention in recent years has been raised in relation to the perceived democratic backsliding in Poland, Hungary and Turkey, which includes reforms aiming at increasing the incumbents' control over the judicial system (Bugaric and Ginsburg 2016, Tas 2016). These reforms affect not only constitutional courts and supreme courts, but also judicial councils that control staffing of lower courts (Kosař 2016). Apart from Poland, Hungary and Turkey, examples of shrinking judicial authority may be found both in democratic (Kuo 2016) and autocratic states (Minzner 2011), as well as in hybrid regimes (Popova 2010). Also courts in established democracies are not sparred of populist attacks. Following Brexit, the Daily Mail on the front page portrayed three judges from the High Court of England and Wales as the "enemies of the people." In the United States, President Trump said the court system was "broken and unfair," and labeled one judge "a so-called judge," after court decisions temporarily blocked his efforts to end the Deferred Action for Childhood Arrivals (DACA) programme and implement a controversial travel ban against citizens from a number of Muslim countries. Populist parties in Greece, Italy, Spain, and elsewhere have employed similar delegitimization strategies. These examples indicate that the judicialization of politics in the last decades has in many instances been followed by politicization of the courts. Although Ferejohn anticipated this development 15 years ago (Ferejohn 2002), researchers have only just started to analyze the causes and implications of such politicization. The rationale for the proposed workshop, therefore, is to encourage the development of more precise theoretical and empirical accounts of, on the one hand, the factors driving politicization and backlash against courts, and, on the other hand, the possible responses to such challenges by judges and their allies in civil society and in the broader political system. By doing so, the workshop aims to contribute to a better understanding of the mechanisms behind the shifting balance of power between courts and political institutions and actors. Ultimately, as seen in many parts of the world, far-reaching politicization of courts may undermine the norm of the rule of law, which is fundamental to maintaining successful societies and a functioning international legal order. Defining and explaining politicization and backlash The use of the concepts of politicization and backlash varies between different scholars, and theoretical refinement in this regard is much needed. Here we will propose a tentative framework, which may serve as inspiration for workshop participants. We suggest that one way of thinking about the distinction between politicization and backlash is to employ the well-known framework of exit, voice and loyalty (Hirschman 1970). Loyalty, in this context, would be equivalent to complying with legal decisions and respecting judicial independence. Politicization, on the other hand, resembles voice, in the sense that it aims at influencing judicial decisions. Ferejohn argued that courts with judicial review powers are inevitably political-in the sense that they (at least sometimes) make decisions with political consequences, and that the appointment of judges are made by political bodies. In contrast, politicization refers to efforts or trends that make courts partisan (Ferejohn 2002:44). Politicized courts make different interpretations of the same body of law, depending on the parties in power in the legislative and executive institutions. The comparative and international judicial politics literature has identified a number of mechanisms that contribute to politicization. Some of these relate to the institutional powers of political actors with respect to appointing, retaining and dismissing judges (Moraski and Shipan 1999, Kosař 2017). Other mechanisms concern courts adjusting their behavior in anticipation of partisan reactions, such as public critique, non-compliance and legislative override (Carruba and Gabel 2015, Larsson and Naurin 2016). To follow the analogy, the way scholars use the concept of backlash is more related to exit, i.e. to restrict or abandon jurisdiction rather than influence judicial decisions. It includes measures such as defunding, jurisdiction-stripping and-in the case of international courts-states exiting from the regime, or collectively terminating the court. Rather than seeking to steer courts' decisions in a particular direction backlash implies systemic challenges against their authority (Voeten 2017), including some degree of de-judicialisation (Abebe and Ginsburg 2018). Politicization and backlash can be related, both negatively (courts moderating their behavior to avoid political reactions) and positively (courts legitimacy being undermined by perceived politicization, making them more vulnerable to systemic attacks). With regards to explaining the rise in attempts at curbing the authority of courts, at least two theoretical approaches have been proposed. On the one hand, Abele and Ginsburg (2018) argue that backlash is best explained by a cost-benefit calculus on behalf of governments. If the present institutional design is too costly to the incumbents, or (in the case of international courts) does not produce the benefits anticipated at the instigation of the court, or at the acceptance of its jurisdiction, politicization or backlash may be rational responses. This occurs when judicialization is perceived to have 'gone too far', most likely triggered by controversial court decisions. This argument fits broadly with the strategic model of judicial politics, which assumes that both judges and policy-makers are sophisticated policy seekers and behave accordingly (Epstein and Knight 1998). Voeten, on the other hand, argues that political attacks against courts are only partly related to controversial judicial decisions or broader trends towards judicialization. In fact, most of the time, governments accept even costly court decisions as binding (although meticulous compliance may not always follow). Instead, in order to explain variation in attitudes and policies towards courts, Voeten emphasizes the role of populism. Populism as a political ideology builds on the distinction between 'the will of the people' and the 'corrupt elites' (Müller 2016). Courts are particularly likely to become the targets of political attacks from populists. Judges are normally not elected by a popular vote, and easily portrayed as part of a distant elite with few attachments to 'ordinary people'. Furthermore, Voeten argues, courts tend to drive liberal agendas, with sometimes salient distributive effects. In fact, one of the more prominent explanations of judicialization is liberal politicians attempting to lock-in their preferred policies as an assurance against future electoral defeats (Hirschl 2004). Courts protect civil liberties, property rights, free markets and minority rights, such as LGBT rights and the rights of refugees and ethnic minorities-values that may not always coincide with the majority will, or the constituencies of populist parties. Backlash and politicization of courts driven by populist parties, or mainstream parties catering to populist sentiments (see Tories in the UK with regards to the ECtHR), may therefore be seen as an attempt to push back on some of that liberal ground. When it comes to possible counter responses to increasing pressure on courts, we can distinguish between factors that are within or beyond the control of judges. The judicial politics literature discusses different types of legitimation strategies used by courts, including both moderation and persuasion in the face of anticipated political reactions (Larsson et al 2017), strategic communication (Staton 2010), and strategic defection (Helmke 2002). However, courts often operate under uncertainty with regards to the political responses to their decisions, and may misjudge the reception of their judgments (Larsson and Naurin 2016). To be effective on the ground, and to fend off political attacks, scholars have pointed out that courts need support from allies in civil society and the broader political system (Alter, Gathii and Helfer 2016). Workshop invitation In sum, we see two empirical trends intersecting: First, the judicialization of politics, which has raised the stakes in the judicial arena, as more politically impactful and sensitive issues are being adjudicated there. Second, the rise of populism (and sometimes democratic backsliding), with its inherent mistrust against liberal counter-majoritarian institutions, which are perceived as standing in the way of the realization of the will of 'the people.' The result is a heterogeneous, but possibly related, set of events, including both subtle forms of politicization, and more serious and systematic attempts at restricting judicial authority by means of institutional reforms, exiting or dismantling international jurisdictions. We welcome papers that study: - The shifting attitudes towards courts-domestic and international-in public opinion, civil society and key elite constituencies. - The shifting policies towards courts-by executives, legislatures and (other parts of) the judiciary-in terms of appointment processes, override, non-compliance, (de)funding, defamation of judges, exit, termination, or more unconventional court curbing tactics (including measures by judicial actors, such as judicial councils, chief justices, and judicial associations). - The shifting responses of courts-and allies of courts-to such challenges. This may include, for example, studies of judicial legitimation strategies, executive and legislative actions aimed at constraining court behavior, the mobilization of compliance partners in support of the judiciary, informal relations between judges and other actors, the mobilization of public opinion as a source of authority in judicial politics, populist challenges to the rule of law, and to courts defending minority rights. Theoretically, we encourage contributions that seek to develop, but also explore the limits of, the standard strategic model of judicial politics. This may include going beyond the conventional focus on policy preferences, to investigate also the role of ideology and/or longer-term concerns with institutional power and social legitimacy. Empirically, we are looking for work of the highest methodological quality, both quantitative and qualitative. The workshop also seeks to contribute to a unified field of judicial politics by welcoming papers both on international and national courts. In this regard, we agree with Staton and More (2011) that the relevant differences between the international and national context, when it comes to law and courts, are of degree rather than of kind, and that international relations and comparative politics scholars have been unnecessarily disconnected in this regard. We hope to be able to discuss and illustrate similarities and differences between the international and domestic contexts in the course of the workshop. References Abebe, D. and T. Ginsburg (2018). "The Dejudicialization of International Politics?" International Studies Quarterly, Forthcoming. Alter, K. J., et al. (2016). "Backlash against International Courts in West, East and Southern Africa: Causes and Consequences." European Journal of International Law 27(2): 293-328. Bugaric, B. and T. Ginsburg (2016). 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