Populists in Power and the Constitution: Examining Non-Compliance by Populists through Constitutional Court Decisions

In the last decades, populist governments in several countries have systematically undermined judicial independence and trust in the rule of law through court-packing, constitutional amendments, and public attacks. Backed by comfortable parliamentary majorities, populist governments in Poland and Hungary had to fear little resistance from other political actors. The erosion of judicial independence in countries with strong populist governments gives testimony of the tense relationship between populism and judicial review. However, we still know little about the behavior of courts and populist parties in government when these parties lack the necessary majorities to implement sweeping judicial reforms. Do populist governments without the parliamentary majorities for judicial reforms concede to the court's power and comply with constitutional requirements? Can non-populist coalition partners effectively moderate the conflict between populists and the courts? We investigate the relationship between governments with populist participation and the Austrian Constitutional Court. Relying on a novel data set of more than 2500 laws under review at the Austrian Constitutional Court between 1980 and 2020, our preliminary analysis does not find any evidence that the Constitutional Court overrules laws enacted by governing coalitions with populist participation more often than laws enacted by governments without populist parties. This indicates that mainstream coalition partners can effectively pressure populists into constitutional compliance. Conflicts between governing populist parties and the court instead arise on a few - yet salient - issue areas, such as the 2003 reform of the law on asylum.