Judicial Aggrandizement and Democratic Backsliding

Can courts initiate democratic backsliding? Current scholarship typically conceives of courts as the victims or targets of today’s populist authoritarians (Müller 2016; Mudde and Kaltwasser 2018; Pappas 2019). Indeed, scholars have emphasized the importance of independent and legitimate courts as a bulwark against the centralization of power and democratic backsliding. But what if judges overrule, weaken and even purge democratically elected executives and legislatures? This paper examines the tactics courts can use to undermine and destabilize elected executives and legislatures thus instigating democratic backsliding, and seeks to understand the conditions under which courts are able to pursue this goal. The paper focuses on judicial activism in Pakistan between 2010 and 2020, and, in particular, on the contestation between the elected government and the judiciary over executive appointments and administration. The paper will discuss how the Pakistani superior judiciary, committed to an agenda of depoliticizing state administration, routinely overruled bureaucratic appointments, constrained the policymaking discretion of the elected government, and even disqualified elected representatives from political office. In doing so, the judiciary expanded the authority and autonomy of unelected government institutions, and weakened, destabilized and delegitimized the elected leadership, thus contributing to the backsliding of democracy. In short, in pursuing the depoliticization of state administration, the judiciary furthered the autocratization of the political system. Using a combination of case law research, newspaper archives and interviews, I will trace the process through which the judiciary undertook this depoliticizing mission, and seek to understand the conditions that made this possible. In doing so, this paper will challenge current accounts of democratic backsliding, that focus primarily on executive aggrandizement, to highlight the threats to democracy that can emerge from the constitutional judiciary, and considers important questions regarding what role the courts can play in advancing or resisting democratic backsliding, and the conditions under which it will play these contrasting roles.