Judicial review versus populist authoritarianism

Populist authoritarianism is a common form of democratic backsliding these days. Can courts do anything to prevent or minimize the damage produced by the growth of such political regimes? The awareness that democracy requires judges (among other institutions) to focus on protecting democratic institutions and procedures has been advocated keenly by many comparative constitutional scholars who identify and diagnose democratic backsliding around the world. This article highlights the possibilities for courts to act as protectors of rather than threats to democracy in this age of elected authoritarians. It traces constitutional developments that suggest the need for judges to develop and implement certain skills that hold significant potential for upholding the principles of democracy. The article provides a non-exhaustive catalogue of typical populist violations of liberal constitutionalism and corresponding judicial strategies for dealing with them. These strategies include enforcing unwritten democratic norms, invalidating non-democratic constitutional amendments, insisting on proper legislative (parliamentary) procedures, and protecting democratic standards against majoritarian assaults, especially as far as free and fair elections are concerned (judicial ‘militant democracy’). In the concluding section, the article briefly reflects upon strategies of self-defence available to judiciaries and some unexpected consequences for populist executives of capturing the judicial branch.