The Costs (and Benefits) of Attacking Courts

Populist leaders in countries as diverse as Venezuela, the United States, Hungary, South Africa, Poland, and Bolivia have recently proposed—and, in some cases, implemented—court curbing proposals designed to undermine the institutional independence of their national high courts. Traditional models of interbranch relations suggest that these populist leaders attack the courts at their own peril. This conventional wisdom suggests that, faced with the threat of public backlash against inter-branch assaults, incumbents have no recourse but to respect the court’s institutional integrity. These models predict swift electoral punishment in response to attacks on high courts. We are not so sure. Theoretically, it is far from obvious why the public would punish incumbents who attempt to curb the judiciary. After all, the public’s interests may well be more aligned with the incumbent than the court because of the electoral connection. Empirically, we have scant evidence as to how (or if) citizens will punish elected leaders who attack courts. Our research aims to delineate the individual and institutional conditions under which citizens will defend a court whose autonomy an incumbent seeks to undermine. We present the results of survey experiments conducted in the United States, Germany, Argentina, and Bolivia and outline our plan to expand our data to 24 other separation-of-powers systems worldwide. Our results present a stinging rebuke to the conventional wisdom: the public not only punishes but also rewards incumbent presidents for their overt attacks on the courts. Moreover, the extent to which incumbents benefit from interinstitutional attacks depends both on citizens’ partisanship and their preexisting democratic values. These results call into question decades of research about interbranch relations by suggesting that leaders may benefit from undermining the separation of powers and independent judiciaries, institutions that have long thought to be kryptonite for elected leaders.