The Global Assault on the Judiciary

In 2023, the government of Benjamin Netanyahu introduced so-called judicial reforms that would give politicians the power to appoint judges and constrain judges’ ability to strike down laws. The proposals led to large-scale protests throughout 2023, but the conflict in Gaza put the debate temporarily on hold. In September 2024, Justice Minister Yariv Levin restarted the reform push when he tried to convince the judicial appointments committee, which he co-chairs, to abandon its tradition that the Supreme Court president be the senior serving judge. Minister Levin is pushing for a different candidate—one less critical of the “reforms”—to fill this post, which has now been vacant for more than a year.

Meanwhile, in Mexico on September 15, 2024, the outgoing president, Andrés Manuel López Obrador, signed into law judicial reforms, which, though different from those of the Netanyahu government, are potentially just as risky for the integrity of the judiciary. The measures reduce the number of judges in the Mexican Supreme Court and increase the number of judges needed to declare laws unconstitutional. They also purge thousands of judges from all levels of the judiciary and change judicial appointment to a popular election process, with few requirements related to expertise or professionalism. The new statute creates a judicial administration agency and judicial discipline tribunal, both of which could be used to intimidate and even persecute judges.

Democracies are built on a system of checks and balances that is meant to prevent any one branch from usurping power. Courts and judges play a key role in upholding the rule of law and keeping executives accountable. They are also the one counter-majoritarian institution citizens can use to protect their rights and thus critical for protection of minority rights.

While the rules governing judiciaries are often complex and arcane, changing them can have dramatic effects on the independence of the courts and their ability to hold other branches of government accountable. Reforms might be warranted where judges are self-dealing or out of touch with public preferences. Too often, though, rule changes are nothing more than attacks by the executive on the independence of the courts. As such, they are part and parcel of the wave of democratic backsliding occurring globally. Attacks on the judiciary often occur when checks on the executive have already been compromised, allowing for once unthinkable assaults on the courts.

In a recent paper, we analyze the nature of judicial backsliding by considering data from 98 countries over 31 years. Here’s what we learned:

Attacks on the judiciary are on the rise

Attacks on courts have increased as courts decide more and more critical political disputes, the outcomes of which are often at odds with the preferences of elected executives. Where courts threaten the ability of autocrats to consolidate power, undermine the separation of powers, and pursue their political enemies, they risk becoming a target.

Autocrats are attacking the courts in different ways

Elected autocrats have a wide range of tools available for assaulting and undermining the courts. They can change or strip their judicial review authority or limit who can file certain types of cases. Elements of this process are visible in the attack on the Supreme Court in Israel. Aspiring autocrats can also create altogether new courts or judicial hierarchies to subvert the independence of existing institutions. This was one of the many strategies used by Victor Orbán in Hungary in 2018, when he created a separate administrative court system that allowed the executive branch to control the selection of judges. Mexico’s recent reforms mirror this strategy as well.

Executives can also manipulate mechanisms for selecting, punishing, and removing judges, allowing them to pack or purge courts. And they can defund courts or cut judges’ salaries to stymie their ability to carry out their work or disincentivize opposition opinions.

Judicial backsliding is most likely when other sources of accountability have been weakened and populists are in power

How do leaders of democracies get away with attacking the courts? Why doesn’t the system of separation of powers do more to protect the judiciary?

Attacks on the judiciary are more likely—and are made possible—when other sources of accountability have already been weakened. Constraints on executives can be weakened by limiting the power of legislative and independent oversight agencies, such as prosecutors, ombudsman, and comptroller generals. The Trump administration used this tactic when it fired a number of inspectors general in different government departments. In several countries experiencing judicial backsliding, including India, Nicaragua, and North Macedonia, legislative oversight of the executive is altogether absent, either because opposition parties have boycotted parliament to express their political displeasure, legislative committees overseeing the executive do not meet, or because the executive dissolved the legislature altogether.

A weak and pliant legislature can enable the executive to attack the judiciary by changing the rules governing judicial selection, appointment, and tenure and by appointing judges who can be easily controlled. In many countries, the judicial councils that select judges can also be neutered by reducing budgets or failing to make the agency fully operational.

Though any executive might be tempted to tweak laws governing the judiciary, we find it most likely to occur under populist leaders, whether on the left or right. Populists view procedural constraints on executive action as a hindrance to achieving the true interests of the people. Populists are also hostile to institutions that are unelected, such as courts, that check the power of executives and—according to populist belief—serve the interests of corrupt elites or protected minorities.

Judicial backsliding happens through stealth

An insidious feature of judicial backsliding is that it is undertaken incrementally and can be hard to monitor. Moreover, attacks on courts are typically done through seemingly legal means—the passage of legislation or constitutional amendments that the public may initially perceive as legitimate—and are often highly technical and packaged in ways that make their ultimate political purposes opaque.

In extremis, judicial backsliding can lead to the virtual collapse of the separation of powers and a descent into outright authoritarian rule, as happened in Hungary, Russia, Turkey, and Venezuela. Once this happens, citizens can no longer depend on the rule of law either for justice or protection and executives face practically no constraints on their power. Not only does this put the rights of citizens in peril—especially minorities—it also impedes the ability of the government to respond to some of the most pressing issues we face, from war and economic crises, to climate change and immigration, which typically require careful judicial consideration.

How can assaults on the judiciary be countered? The threat of judicial backsliding requires monitoring groups to call out assaults on the judiciary publicly, for example through local bar and lawyers associations. International allies such as Europe’s Venice Commission and the American Bar Association’s Rule of Law Initiative also have a role to play in promoting global norms. Domestic civil society and lawyers’ groups can also bring lawsuits to international and regional courts to counter judicial attacks at home, as Polish civil society groups have done.

The most important factor checking judicial backsliding is vigilance. Citizens, policymakers, and elected leaders must ensure that any changes in the rules governing the judiciary do not have the purpose—often hiding in plain sight—of expanding executive discretion and weakening democratic checks and balances.

Stephan Haggard is research director for Democracy and Global Governance at IGCC and Distinguished Research Professor at the UC San Diego School of Global Policy and Strategy. Lydia Tiede is a professor of political science at the University of Houston.

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