Resistance by association? (Un)successful pathways to maintaining judicial independence in Hungary and Poland

Both Hungary and Poland have been in the spotlight regarding their ongoing democratic backsliding, with the current Executives exerting control over supposedly independent pillars of democracy, such as courts or the media. While the concerns about these countries also voiced by leaders of European institutions sang the same tune, the resistance against the systematic erosion of judicial independence comes in different forms. Using comparative longitudinal case study methodology, this paper shows that a defining characteristic in the potential, visibility, and feasibility of what judges did or could do under the current threats depends on the role judicial associations, the representative collegial judicial bodies. More precisely, the format, organization, and operative tools of judicial associations contribute to their influence on prior judicial reforms and their capacity to withstand ongoing efforts in curtailing their independence from political actors. Empirically, the paper reviews multiple judicial reforms in the 1997-2015 period in both countries and assesses how judicial associations then shaped the divergent responses to recent attempts at limiting judicial independence. The differences in the legal framework, organization, and network reliance explains variance in resistance. Overall, the paper broadens the theoretical and empirical framework for studying the role of courts and judges with considerations regarding professional association organization and coordination, as a potential layer of studying judicial resistance.