How Courts Undermine Democracy

Conventional wisdom holds that when courts are independent of the elected government, the judiciary acts as a bulwark against democratic backsliding. Yet even when courts are independent of the government, the judiciary’s behavior frequently undermines democracy. This essay identifies five distinct types of democracy-subverting judicial behavior and advances an institutional theory to explain this behavior. When the institutions for selecting judges concentrate power in the hands of one actor or group, they enable court capture and judicial behavior that damages democracy. Paradoxically, when actors outside the elected government capture the courts, the judiciary’s behavior may be independent of the government yet subversive of democracy. Institutional reforms that disperse power over selecting judges and mobilization by prodemocratic judicial allies can empower courts to safeguard rather than subvert democracy.