The U.S. Judicial Crisis Is Uniquely Dangerous
But other democracies provide a roadmap for courts to prevail over attacks from the executive branch.
But other democracies provide a roadmap for courts to prevail over attacks from the executive branch.
foreignpolicy.com
“… The first driver of executive attacks on the judiciary is the global weakening of the political establishment—the elites within political parties, state institutions, media, and business who can constrain an aspiring autocrat. While in the 1980s and 1990s politicians relied on establishment political parties, media outlets, and donors to reach large audiences, today’s elected leaders can build
mass followings using digital technologies, bypassing
democracy’s gatekeepers.
A weakened political establishment leaves the judiciary vulnerable, because establishment leaders often worked to defeat attacks on the courts. In Israel, for example, the influential finance minister from 2015 to 2020
blocked right-wing plans to curb the judiciary. But today, the political establishment is weaker, and individual executives are more powerful. Israel’s governing coalition now faces little internal dissent as it moves to
restructure the judiciary and
fire independent state officials.
…
Second, as elected leaders have become stronger, so has the judiciary. Before World War II,
only a handful of constitutions empowered judges to strike down laws that they deemed unconstitutional. But by 2011,
more than 80 percent of constitutions gave courts the power of constitutional review—often because the drafters
sought to protecttheir political interests from future governments.
High courts around the world are now responsible for adjudicating issues of
major political importance, from reproductive rights and same-sex marriage to bans on political parties.
Because the courts now have greater power and responsibility for protecting democracy, political leaders have stronger incentives to try to capture them. Today, elected officials seeking to concentrate power will most likely encounter a judiciary empowered to defend the constitution. …”