Can Courts Forestall Demoratic Backsliding?

The past two decades have seen substantial deterioration of commitment to democracy and rule of law in a number of countries. In response to this trend, the term 'democratic backsliding' has emerged. The term reflects the fact that, in contrast to the Cold War era, today the displacement of democracy is often a gradual process. Thus, it is possible to pinpoint critical junctures where democratic backsliding either advances or stalls. Since domestic and international courts are now an arena for cases involving 'mega-politics', such junctions would often fall into the jurisdiction of those courts. Based on this presumption, my presentation will explore the courts' institutional potential to forestall democratic backsliding at a critical junction. Specifically, my focus will be on issues of election integrity, which determine commitment to political democracy on many of the critical junctions. I will use the European Court of Human Rights (the ECtHR) as an example of an international court and the Constitutional Court of the Russian Federation (the RCC) as a domestic court. I will argue that the courts' efficiency in forestalling democratic backsliding is dependent on the relative strength of political actors at a given junction. A court will be efficient only if these actors are willing to bring a mega-political issue before a court, and subsequently rely on the resulting judgment in their actions. To illustrate this thesis, I will discuss the history of the RCC against the backdrop of democratic backsliding in Russia. Initially the court has been actively involved in the mega-political struggle between the President Yeltsin and the parliament. Yet, this struggle has been resolved in an extra-constitutional fashion, bringing about a new institutional configuration. Ultimately, this configuration has significantly limited the appetite for bringing further mega-political issues for judicial resolution. While some of them have made it to the RCC, it was clear that relevant political actors lacked clout to rely on a wide-ranging judgment. Ascending to power, Vladimir Putin made use of the existing institutional imbalances facing little resistance. As a result, a number of critical junctions occurred by effective acquiescence. I argue that in these circumstances the RCC could not serve as an effective bulwark against democratic backsliding. Rather, the only conceivable strategy for its institutional survival was to adapt to the changing environment. In contrast to the RCC, the ECtHR is insulated from immediate pressures of domestic politics. Yet, at the same time it might not seem the optimal forum for litigating mega-political issues related to electoral politics. Indeed, the early influential jurisprudence of the Court indicated such issues as a purvey of domestic jurisdictions. However, this approach has clearly changed once political actors in a number of countries indicated their willingness to litigate election-related issues. Today the ECtHR has a growing body of jurisprudence that is directly relevant to critical junctions on the road to democratic backsliding. Yet, which turn will be taken depends not on the Court, but rather on the individual circumstances in the country concerned.