Abusive Judicial Review: Courts Against Democracy

Both in the US and around the rest of the world, courts are generally conceptualized as the last line of defense for the liberal democratic constitutional order. We show that it is not uncommon for judges to issue decisions that instead intentionally attack the core of electoral democracy. Courts around the world, for example, have legitimated anti-democratic laws and practices, banned opposition parties to constrict the electoral sphere, eliminated presidential term limits, and repressed opposition-held legislatures. We call this: 'abusive judicial review'. Would-be authoritarians at times seek to capture courts and deploy them in abusive ways as part of a broader project of democratic erosion, because courts often enjoy legitimacy advantages. This paper gives examples of abusive judicial review from around the world, explores potential responses both in domestic constitutional design and international law, and asks whether abusive judicial review is a potential threat in the US.