The False Prophets, or Why the Judicial Guardians of the Constitutions Will Not Save Democracy (Alone)

Considering the global crisis of liberal democracy, discourses within resilience research frequently idealise constitutional courts as an ultima ratio against processes of populist erosion. This paper breaks with this juristocentric expectation, warning against a unilateral delegation of the responsibility for democratic preservation to judicial actors. The theoretical foundation of this study is grounded in Hermann Heller’s scepticism towards a purely formalistic “empty nomocracy” and Ingeborg Maus’s concept of popular sovereignty, through which the ambivalences of a purely judicial rescue of democracy are exposed. Methodologically, the paper differentiates judicial conduct through a deductive typology comprising four ideal types: the Guardian Court, the Activist Court, the Self-Restrained Court, and the Captured Court. The subsequent comparative analysis of international case studies demonstrates the Janus-faced nature of constitutional adjudication. Although courts can temporarily function as an institutional bulwark, they risk being instrumentalised as mechanisms of authoritarian consolidation within the context of autocratisation. The study concludes with the thesis that sustainable democratic resilience cannot be secured by judicial and legal means alone but depends on the active engagement of the sovereign. Genuine democratic maintenance remains inherently vested in the sovereign, manifesting in active political practice—currently through elections and protests, and prospectively through the decentralised legislative integration of the sovereign—that could be merely complemented by courts.